LC89     Humphreys,  Willard  Cunningham. 
H8        Government  and  Education  in 
the  United  States. 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

RIVEitSiDE 


GOVERNMENT    AND    EDUCATION 


IN   THE 


UNITED  STATES. 


DISSERTATION   IN  PART  FULFILLMENT   OF  THE  CON- 
DITIONS   NECESSARY    FOR    THE   DEGREE    OF 
PH.D.    IN  THE    SCHOOL  OF    POLITICAL 
SCIENCE,    COLUMBIA  COLLEGE. 


BY 


WILLARD  C.  HUMPHREYS,  A.  M., 

Seligman  Prize  Fellow. 


PRESS  OF  A.  E.  CHASMAR  &  Co., 
833  BROADWAY,  N.  Y. 


H.f 


TABLE    OK    CONTENTS. 


PAGE. 

Chapter  I.  Introduction 5 

Chapter  II.  General  Theory  of  Our  System,  and  Extent  of 

Aid  by  The  National  Government 7 

Chapter  III.  Education  in  the  Commonwealths 14 

Chapter  IV.  The  Legal  Relations  of  the  Public  School 25 

Chapter  V.  The  Legal  Relations  of  the  American  College.  .31 

Chapter  VI.  Conclusion    51 


State  Aid  to  and  Control  of  Educational 
Institutions  in  the  United  States. 


CHAPTER  I. 
INTRODUCTION. 

It  is  the  purpose  of  the  following  dissertation  to  indicate 
briefly  the  present  condition  of  our  educational  system  in  its 
relations  with  the  government.  It  will  not  include  within  its 
scope  a  history  of  the  various  phases  of  development  through 
which  our  schools  and  colleges  have  passed,  and  still  more 
foreign  to  its  purpose  would  be  any  consideration  of  the  internal 
management  of  our  educational  institutions  or  criticism  of  their 
methods  and  subjects  of  study  :  the  former  has  very  recently 
been  thoroughly  treated  in  the  monographs  of  the  Johns  Hop- 
kins University  (i)  and  the  more  general  works  of  Boone  and 
others,  (2)  while  the  latter  constitutes  a  larger  part  of  the  sub- 
ject-matter of  the  State  reports,  and  provides  a  theme  of  appar- 
parently  never-failing  interest  to  the  current  reviews  and 
magazines. 

Concerning  the  utility  of  State  interference  in  educational 
matters,  and  its  legitimacy  as  an  object  of  government,  it  is  not 
necessary  to  speak  at  length  in  this  place,  except  to  call  atten- 
tion to  the  favor  which  such  interference  now  finds  with  politi- 
cal economists,  and  the  somewhat  singular  unanimity  of  assent 

(i.)  The  monographs  of  this  series  are :  The  College  of  William  and  Mary,  by  Her- 
bert B.  Adams,  1888 ;  Thomas  Jefferson  and  the  University  of  Virginia,  by  Herbert  B. 
Adams,  1888  ;  History  of  Education  in  North  Carolina,  by  Claries  L.  Smith,  1888  ;  History 
of  Higher  Education  in  South  Carolina,  by  C.  Meriwether,  1889;  Education  in  Georgia, 
by  Charles  E.  Jones,  1880;  Education  in  Florida,  by  George  G.  Bush,  1889;  History  of 
Education  in  Wisconsin,  by  David  Spencer  and  William  F.  Allen,  1889.  Others  are  in 
preparation. 

(2.)  R.  G.  Boone,  Education  in  the  United  States,  1889. 


with  which  the  general  doctrine  is  received.  This  assent  is  the 
more  remarkable  because  it  is  a  growth  of  comparatively 
recent  years.  In  1775,  Adam  Smith,  while  not  failing  to  recog- 
nize the  value  of  mental  attainments  as  an  element  of  national 
excellence,  still  spoke  with  decided  emphasis  against  the  estab- 
lishment of  a  general  system  of  public  instruction  ;  (i)  while 
to-day  even  the  most  consistent  of  the  laissiz  faire  political 
writers  proclaim  popular  education,  supported  and  controlled 
by  government  authority  to  be  a  fundamental  doctrine  of  all 
sound  economic  creeds.  Whether  this  change  of  ideas  is  a 
natural,  or  perhaps  even  necessary,  result  of  the  growing  prev- 
alence of  democratic  tendencies,  I  will  not  venture  to  say ; 
this,  however,  is  certain,  that  all  the  arguments  brought  for- 
ward in  support  of  compulsory  public  instruction  apply  with 
special  fitness  to  a  democratic  community,  and  are  further  rein- 
forced by  the  peculiar  circumstances  of  the  people  of  the  United 
States.  Washington  was  actuated  by  more  far-seeing  motives 
than  a  desire  for  rhetorical  display  when  he  urged  upon  the 
people  the  necessity  of  disseminating  information  among  the 
people  ;  (2)  and  Jefferson,  with  all  his  zeal  for  popular  instruc- 
tion, perhaps  builded  even  better  than  he  knew,  when,  by  his 
untiring  efforts  to  establish  an  effcient  school  system  in  Vir- 
ginia, he  set  an  example  that  has  been  followed  with  eagerness, 
if  not  always  with  wisdom,  in  all  the  States  of  the  Union.  (3) 

The  results  which  this  movement  has  achieved,  the  princi- 
ples which  have  guided  it,  and  the  condition  in  which  the  sys- 
tem now  is,  will  constitute  the  subject  of  inquiry  of  the  present 
essay. 

(x  )  Adam  Smith,  Wealth  of  Nations.  Book  V.,  Chap  I.,  Articles  2  and  3.  Adam 
omith  was,  it  is  true,  fully  alive  to  the  advantages  of  generally  diffused  intelligence  even 
among  the  poorest  classes  ;  but  was  opposed  to  any  system  of  public  instruction  which 
should  impart  more  than  the  rudiments  of  common  education.  And  as  to  the  maintenance 
of  common  or  primary  schools,  while  he  does  not  deny  the  justice  of  forcing  the  whole 
society  to  contribute  to  it,  he  thinks  that  "  this  expense  might  with  equal  propriety  and 
even  with  some  advantage  be  defrayed  altogether  by  those  who  receive  the  immediate 
benefit  of  such  education  and  instruction"  a  sentiment  utterly  at  variance  with  the 
opinions  of  more  recent  writers  upon  this  subject.  For  a  statement  of  what  may  be 
regarded  as  the  generally  adopted  present  view  of  this  matter,  see  Henry  Fawcett, 
Manual  of  Political  Economy,  Bk.  II.,  Chap.  VIII. 

(a.)  See  especially  his  Farewell  Address. 

(3  )  See  the  Writings  of  Thomas  Jefferson,  Edited  by  by  H.  A.  Washington,  New 
York,  1855,  especially  Vol.  IV.,  p.  317,  and  Vol.  VI.,  pp.  517/542^  564.  The  reservation,  in 
the  Ordinance  of  1787,  of  lot  number  sixteen  in  each  township  was  due  to  Thomas  Jeffer- 
son's influence  He  had  in  May,  1784,  as  chairman  of  the  Committee  on  the  Organization 
of  the  Western  Territory,  recommended  the  reservation  of  "the  central  section  of  every 
township  for  the  maintenance  of  public  schools." 


CHAPTER   II. 

GENERAL  THEORY  OF  OUR  SYSTEM  AND  EXTENT  OF 
AID  BY  THE  NATIONAL  GOVERNMENT. 

One  of  the  most  conspicuous  features  of  the  American 
school  system  is  its  representative  character.  The  doctrine  of 
the  sovereignty  of  the  people,  which  pervades  all  our  social 
and  political  organizations,  is  carried  to  its  furthest  limits  in 
our  institutions  of  public  instruction ;  and  the  principle  to 
which  we  are  most  strongly  attached  is  thus  fitly  exhibited  in 
that  feature  of  our  civilization  upon  which  we  set  the  highest 
value.  As  stated  by  Bishop  Fraser  in  his  Report  to  the  Schools 
Enquiry  Commission:  (i)  "Local  self-government  is  the  un- 
derlying principle  of  democratic  institutions ;  local  self-govern- 
ment is  the  mainspring  of  the  American  school  system."  This 
circumstance  that  the  schools  are  thus  directly  in  the  hands  of 
the  people,  whence  they  derive  a  force  which  in  great  measure 
makes  up  for  their  other  deficiencies,  makes  possible,  and  at 
the  same  time  explains,  the  statement,  often  made  in  apparent 
disparagement,  that  there  is  no  national  system  of  education  in 
the  United  States.  Such  a  law  would  be  very  generally 
regarded  as  repugnant  to  one  of  the  fundamental  principles  of 
our  government,  the  avowed  right  of  which  is  to  secure  to  the 
people  the  largest  amount  of  local  discretion  consistent  with 
the  recognition  of  national  obligations.  And  this  principle  of 
local  self-government  upon  which  our  political  system  is  estab- 
lished, presupposes  a  desire  for  education  in  the  community  to 
whose  action  the  control  of  such  education  is  left.  Its  success, 
therefore,  will  always  depend  upon  the  degree  of  enlightenment 
of  the  district  where  it  is  applied.  In  a  priest-ridden  country  a  sys- 
tem of  education  depending  chiefly  upon  popular  suffrage  would 
be  a  comparative  failure.  That  which  Massachusetts  regards 
as  her  chief  blessing,  New  Mexico  looks  upon  with  indifference 
or  rejects  with  disdain.  A  striking  illustration  of  the  widely 
different  lights  in  which  popular  education  may  be  regarded 

(i)  James  Fraser,  Report  to  the  Schools  Enquiry  Commission,  London,  1861,  p.  14. 
The  same  idea  is  expressed  in  De  Tocqueville's  great  work,  pp.  70,  77,  ff. 


is  contained  in  two  replies  sent,  while  America  was  yet  a 
dependency  of  Great  Britain,  from  different  colonies  to  ques- 
tions put  by  the  English  Commissioners  for  Foreign  Plantations. 
The  Governor  of  Virginia  answered,  "  I  thank  God  there  are  no 
free  schools  or  printing  presses,  and  I  hope  we  shall  not  have 
these  hundred  years."  The  Governor  of  Connecticut  replied, 
"One-fourth  the  annual  revenue  of  the  colony  is  laid  out  in 
maintaining  free  schools  for  the  education  of  our  children."  (i) 
These  divergencies  of  opinion  on  the  school  question  con- 
tinued, though  of  course  in  a  greatly  modified  form,  until  a 
comparatively  recent  date.  As  long  as  slavery  existed  it  was 
impossible  that  the  free  school  should  find  a  permanent  home 
in  the  South  ;  and  this  should  always  be  borne  in  mind  in  esti- 
mating the  comparative  rapidity  of  educational  progress  in  the 
different  sections  of  the  country  or  their  present  relative  con- 
ditions, which,  it  may  be  remarked  in  passing,  are  still  very 
dissimilar.  After  the  abolition  of  slavery,  and  as  soon  as  the 
national  excitement  caused  by  the  Rebellion  had  begun  to  sub- 
side, attention  was  repeatedly  and  urgently  drawn  to  the  lack 
of  uniformity  in  educational  methods  and  consequent  condi- 
tion of  popular  intelligence  in  different  parts  of  the  Union  ;  and 
the  question  of  the  desirability  of  enforcing,  by  Federal  laws,  a 
compulsory  system  of  common  schools  upon  all  the  common- 
wealths was  thoroughly  agitated,  (a)  Although  the  evils  of 
the  then  existing  systen,  or  rather  lack  of  system,  were  very 
generally  acknowledged  and  deplored,  all  proposals  for  pro- 
viding means  by  which  the  commonwealths  could  be  com- 
pelled to  take  action  in  the  matter  met  with  disfavor  and  were 
rejected  on  the  score  of  their  unconstitutional  interference  with 
local  State  rights.  But  the  propriety  of  the  view  that  it  was 
both  the  right  and  the  duty  of  the  national  government  to  ex- 
tend its  aid  to  the  cause  of  education  in  the  commonwealths, 
was  very  generally  admitted ;  and  the  same  spirit  which  had 
led  the  people  to  look  with  favor  upon  the  previous  extensive 
grants  of  land  and  money  for  this  purpose  by  the  National 


(i.)  Francis  Adams,  The  Free  School  System  of  the  United  States,  London,  1875. 

(a.)  The  Congressional  Records  for  the  years  following  the  Rebellion  make  very 
frequent  mention  of  the  introduction  of  bills  having  this  general  end  in  view.  A  discus- 
sion of  the  subject  is  contained  in  the  Proceedings  of  the  National  Education  Association 
for  1871,  p.  18,  ff. 


Congress  now  caused  them  to  give  glad  assent  to  the  establish- 
ment of  the  present  Bureau  of  Education. 

The  following  statement  of  the  "theory  of  education  in 
this  country,"  as  enumerated  by  a  committee  of  a  congress  of 
State  superintendents  in  1872,  is  abridged  from  a  publication  of 
the  Department  of  the  Interior  of  that  year :  The  American 
school  system  is  an  organic  growth,  having  its  origin  in  attempts 
made  to  supply  social  and  political  needs.  By  the  Constitution 
of  the  United  States  no  powers  are  vested  in  the  central  gov- 
ernment of  the  nation,  unless  the  same  relate  immediately  to 
the  support  and  defence  of  the  whole  people,  to  their  inter- 
course with  foreign  powers,  or  to  the  subordination  of  the 
several  States  composing  the  Union.  Military  education  for 
the  army  and  navy  only  have  been  provided  for  directly  by 
the  national  government;  and  the  further  action  in  aid  of 
education  has  been  limited  to  endowments  in  the  form  of  land 
grants  to  the  several  States,  or  portions  thereof,  for  the  purpose 
of  providing  a  fund  for  the  support  of  common  schools,  or  to 
found  colleges  for  the  promotion  of  scientific,  agricultural  and 
the  mechanical  arts.  To  the  several  States  individually  is  left, 
for  the  most  part,  the  local  administration  of  justice,  as  well  as 
the  establishment  of  public  agencies  for  the  well-being  of  the 
civil  and  social  community  in  its  industrial,  economical,  social 
and  spiritual  aspects.  The  general  form  of  the  national  gov- 
ernment is  largely  copied  in  the  civil  organization  of  the  par- 
ticular States,  and  no  powers  or  functions  of  an  administrative 
character  are  ordinarily  exercised  by  the  States,  as  a  whole, 
which  concern  only  the  particular  interests  and  well-being  of 
the  subordinate  organizations  or  corporations  into  which  the 
State  is  divided  for  civil  and  municipal  purposes  ;  but  the  State 
usually  vests  these  local  powers  and  functions  in  the  corpora- 
tions themselves,  such  as  counties,  townships  and  cities.  The 
power  of  the  State  over  these  corporations  is  complete,  but 
they  are  usually  allowed  large  legislative  and  administrative 
powers  of  a  local  character,  while  the  State  ordinarily  confines 
its  actions  to  matters  in  which  the  people  of  the  whole  State 
are  interested.  Upon  the  several  States  individually,  in 
which  is  vested  the  power  of  defining  the  qualifications 
of  the  electors  who  choose  by  ballot  the  representatives  that 
make  and  execute  the  laws  of  the  land,  rests  the  responsibility 


of  making  provision  for  the  education  of  those  charged  with 
the  primary  political  functions.  This  responsibility  has  been 
generally  recognized  in  the  establishment,  by  legislative  enact- 
ment, of  free  common  schools,  supported  in  part  by  State 
school  funds  accumulated  from  the  national  grants  of  land  and 
from  appropriations  from  the  State  revenue,  and  in  part  by 
local  taxation  made  upon  those  directly  benefited  by  the 
schools  themselves.  The  national  government  and  the  State 
governments  regard  education  as  a  proper  subject  for  legisla- 
tion, on  the  ground  of  the  necessity  of  educated  intelligence 
among  a  people  that  is  to  furnish  law-making  as  well  as  law- 
abiding  citizens ;  and  the  municipal  or  local  corporations 
regard  education  in  its  social  and  economic  aspects  as  well  as 
in  its  more  general  political  one.  Thus  the  purposes  of  the 
State  and  the  idea  of  civil  society  conspire  in  the  production  of 
the  American  system  of  public  education,  and  to  its  mainten- 
ance and  support  the  property  of  the  community  is  made  to 
contribute  by  taxation. 

So  much  for  the  general  principles  which  regulate  the  re- 
lations of  the  national,  State  and  local  authorities  in  educational 
matters  ;  let  us  now  briefly  consider  what  has  so  far  been  done 
by  the  federal  government  in  discharge  of  its  share  of  the 
national  duty.  The  policy  of  extending  aid  to  education  by 
grants  from  the  general  government  was  very  early  recognized, 
in  fact  dates  from  a  period  anterior  to  the  adoption  of  the 
Federal  Constitution.  In  1785  Congress  established  an  ordi- 
nance for  disposing  of  the  lands  in  the  Western  Territory,  which 
contained  the  following  provision:  "There  shall  be  reserved 
the  lot  No.  1 6  of  every  township  for  the  maintenance  of  public 
schools  within  the  said  township  (r.)"  Two  years  later  (July 
13,  1787)  the  farmers  "Ordinance  for  the  government  of  the 
United  States  northwest  of  the  river  Ohio  "  was  adopted,  which 
contained  the  following  clause  (in  Art.  3)  :  "Religion,  morality 
and  knowledge  being  necessary  to  good  government  and  the 
happiness  of  mankind,  schools  and  the  means  of  education 
shall  be  forever  encouraged.  The  lot  No.  16  in  each  township 
or  fractional  part  of  a  township  is  to  be  given  perpetually  for 
the  purposes  named  in  said  ordinance  (of  1785) ;  .  .  .  not 

(x.)  Ordinance  of  May  ao,  1785,  Journals  of  Continental  Congress  IV,  520. 


IO 


more  than  two  complete  townships  to  be  given  perpetually  for 
the  purpose  of  an  university  .  .  .  to  be  applied  to  the  in- 
tended object  by  the  legislature  of  the  State."  The  policy  thus 
inaugurated  was  not  confined  to  the  northwest  territory,  but 
was  fruitful  of  the  most  beneficent  results  to  the  whole  nation. 
In  an  act  of  March  3,  1803,  providing  for  the  disposal  of  lands 
south  of  Tennesee,  the  reservation  was  made  of  lot  No.  16  of 
each  township  for  the  purposes  of  common  school  and  university 
education;  and  from  that  time  until  1848  similar  provisions 
were  made  upon  the  organization  of  each  new  Territory.  In 
that  year,  upon  the  organization  of  Oregon  Territory,  the  quan- 
tity of  land  reserved  for  the  benefit  of  the  public  schools  was 
doubled ;  and  to  each  new  Territory  organized,  and  State  ad- 
mitted, since  then  (except  West  Virginia)  the  lots  No.  16  and  36 
of  every  township  (one-eighteenth  of  the  entire  area)  have  been 
granted  for  public  schools.  Besides  this,  to  each  State  admitted 
into  the  Union  since  1800  (except  Maine,  Texas  and  West  Vir- 
ginia) and  the  Territories  of  New  Mexico,  Utah  and  Washington, 
have  been  granted  two  or  more  townships  of  land  to  endow  a 
university ;  and  Ohio,  Florida,  Wisconsin  and  Minnesota  each 
received  considerably  more  than  two  townships.  Then  on  July 
2,  1862,  the  law  granting  lands  to  each  State  to  endow  colleges 
of  agriculture  and  the  mechanic  arts  was  enacted,  and  under  this 
law  some  9,600,000  acres  have  been  granted.  (It  may  be  re- 
marked that  Texas,  on  her  admission,  retained  her  title  to  her 
public  lands,  and  thus  was  excepted  from  the  grants  to  endow 
common  schools  and  universities  ;  but  shared  the  benefits  of  the 
act  endowing  colleges  of  agriculture,  receiving  as  her  share 
180,000  acres.)  In  addition  to  these  general  grants,  there  have 
been  special  gifts  to  various  institutions  of  learning  in  several 
States  and  territories,  amounting  in  all  to  51,000  acres,  and 
200,000  acres  to  the  State  of  Tennessee.  Finally,  by  an  act  of 
Sept.  4,  1841,  500,000  acres  of  land  were  to  be  granted  for  in- 
ternal improvement  to  each  of  the  following  States  :  Alabama, 
Arkansas,  Illinois,  Lousiana,  Michigan,  Mississipi,  Missouri 
and  Ohio  (i) ;  and  similar  grants  have  been  made  to  each  State 
subsequently  admitted  to  the  Union;  most  of  which  landhasbeen 
set  aside  by  the  respective  States  for  the  benefit  of  free  schools. 

Dunlap's  Digest,  p.  988  ;  Report  of  the  Commissioner  of  Education,  1876,  p.  xii. 


II 


Besides,  thus  encouraging  the  furtherance  of  education  in  the 
States  by  grants  of  land  to  them,  Congress  at  an  early  period 
inaugurated  the  policy  of  giving  a  portion  of  the  net  proceeds 
of  the  sales  of  public  lands  to  the  several  States  in  which  they 
were  situated.  Thus,  on  March  3,  1803,  an  act  was  passed 
grantiHg  three  per  cent,  of  such  net  proceeds  to  the  State  of 
Ohio  for  purposes  of  internal  improvements,  and  similar  grants 
have  since  been  made  to  each  State  admitted  to  the  Union, 
except  that  in  many  cases  the  money  is,  by  express  declaration, 
intended  to  be  devoted  to  the  maintenance  of  schools  and  uni- 
versities. Thus  the  terms  of  the  grant  to  Illinois  (approved 
Dec.  12,  1820)  enact  as  follows  :  "...  The  Secretary  of  the 
Treasury  shall  from  time  to  time  and  whenever  the  quarterly 
accounts  of  public  moneys  of  the  several  land  offices  shall  be 
settled,  pay  three  per  cent,  of  the  net  proceeds  of  the  lands  of 
the  United  States  lying  within  the  State  of  Illinois,  which  since 
Jan.  i,  1819,  have  been  or  hereafter  may  be  sold  by  the  United 
States,  after  deducting  all  expenses  incidental  to  the  same,  to 
such  person  or  persons  as  may  be  authorized  by  the  legislature 
of  the  said  State  to  receive  the  same,  which  sums  thus  paid 
shall  be  applied  to  the  encouragement  of  learning  within  said 
State,  &c."  By  a  preceding  act  (April  18,  1818)  it  had  been  pro- 
vided that  one-sixth  of  the  sums  derived  from  the  three  per  cent, 
net  proceeds  of  public  land  sales  should  be  "exclusively  devoted 
to  a  college  or  university."  The  whole  amount  thus  granted 
to  the  States  to  be  devoted  (either  by  the  terms  of  the  grant  or 
by  State  constitutional  provisions)  makes  up  a  total  of  over 
$6,000,000.  (i.) 

Finally,  in  addition  to  these  grants  of  land  and  proceeds 
from  the  sale  of  lands,  the  general  Government,  under  President 
Jackson's  administration,  passed  an  act  (June  23,  1836),  dis- 
tributing among  the  various  States  the  surplus  which  remained 
in  the  Treasury  after  the  payment  of  the  national  debt  contracted 
by  the  Revolutionary  War  and  the  purchase  of  Louisiana  ;  and 
a  large  part  of  this  fund  (which  in  all  amounted  to  $28, 101,644.91) 
was  devoted  by  the  States  to  educational  purposes.  (2.) 

(i.)  The  several  items  constituting  this  sum  were  given  in  a  paper  read  by  Mr.  John 
Eatun  before  the  Dept  of  Superintendence  of  the  National  Education  Association  on  Dec. 
n,  1877.  Published  by  the  Uept.  as  an  appendix  to  Circular  of  Information  No  2,  1879 

(2  )  The  distribution  of  this  surplus  is  given  in  the  above  paper,  and  more  iully  by  Mr. 
Bourne  in  his  History  of  the  Surplus  of  1837.  New  York,  1885. 


12 


We  have  thus  seen  with  what  munificence  Congress  has 
thought  fit  to  extend  its  aid  to  the  cause  of  education  in  the 
several  States ;  it  remains  to  consider  what  its  means  are  for 
insuring  a  proper  application  of  its  grants  by  exercising  a  con- 
trol over  the  educational  systems  adopted  by  the  State  govern- 
ments. And  such  a  control,  as  might  be  expected  from  our 
previous  considerations,  is  found  to  be  wholly  wanting,  the 
whole  tide  of  public  sentiment  in  America  being  in  favor  of  a 
perfectly  unfettered  working  of  the  individual  State  systems. 
In  fact  it  was  not  until  1867  that  any  department  taking  cog- 
nizance of  national  education  existed  at  Washington  at  all.  In 
that  year  the  National  Bureau  of  Education  was  established. 
This  department  has  no  control  whatever  over  the  school 
organization  of  the  States.  At  the  time  of  presenting  the  bill 
for  the  formation  of  the  Bureau,  General  Garfield,  by  whom  it 
was  introduced,  said  "The  genius  of  our  Government  does  not 
allow  us  to  establish  a  compulsory  system  of  education  as  is 
done  in  some  of  the  countries  of  Europe.  There  are  States  in 
this  Union  which  have  adopted  a  compulsory  system,  and  per- 
haps that  is  well.  It  is  for  each  State  to  determine,  (i.)"  Even 
in  the  territories,  where  the  legislative  power  of  Congress  is 
supreme,  the  authority  of  the  Bureau  is  confined  to  the  collection 
of  information.  Its  function  is  not  to  direct  in  any  way  the 
school  affairs  of  the  States,  but  to  co-operate  with  them  in  the 
work  of  administering  systems  of  public  instruction.  The  act 
which  created  the  Bureau  defined  the  object  it  had  to  fulfill,  and 
its  sphere  of  action  has  never  been  extended.  It  was  founded 
"for  the  purpose  of  collecting  such  statistics  and  facts  as  should 
show  the  condition  and  progress  of  education  in  the  several 
States  and  Territories,  and  of  diffusing  such  information  respect- 
ing the  organization  and  management  of  school  systems  and 
methods  of  teaching  as  should  aid  the  people  of  the  United 
States  in  the  establishment  and  maintenance  of  effective  school- 
systems  and  otherwise  promote  the  cause  of  education."  In 
accordance  with  its  duty  as  thus  prescribed,  the  Bureau  of 
Education  has  confined  itself  to  the  issuing  of  an  annual  report 
showing  the  condition  of  the  several  States  as  respects  their 
educational  interests,  and  the  occasional  publication  of  a  circu- 

(i.)  Garfield's  bill  was  introduced  on  Feb.  14,  1866,  and  passed  on  March  i,  1867. 


lar  of  information  containing  a  detailed  description  of  some 
special  feature.  These  reports  and  circulars  are  compiled  and 
edited  with  considerable  care  and  skill,  though  for  their  informa- 
tion the  officers  of  the  Bureau  are  dependent  upon  the  courtesy 
of  the  State  Superintendents  and  others  in  charge  of  public  and 
private  educational  institutions,  and  cannot  exercise  any  means 
of  compulsion  in  elicting  from  them  facts  for  publication.  Con- 
cerning the  extent  to  which  Congress  might  go,  and  the  means 
it  might  adopt,  to  secure  a  proper  application  by  the  various 
States  of  the  funds  which  have  been  given  them  by  the  central 
government,  and  the  authority  which  Congress  might  assume 
in  the  matter  of  centralizing  the  whole  common-school  system, 
without  over-stepping  the  limits  imposed  upon  it  by  the  Con- 
stitution, there  is  much  conflict  of  opinion.  It  will  suffice  to- 
remark  that  as  a  matter  of  fact,  under  our  present  system,  there 
is  no  central  control  whatever,  and  that  the  duty  and  power  of 
the  Bureau  of  Education  is  merely  to  exhort,  but  not  direct,  the 
commonwealths  to  discharge  their  national  obligation  of  giving 
fit  instruction  to  their  citizens. 

CHAPTER  III. 
EDUCATION  IN  THE  COMMONWEALTHS. 

It  is  not  proposed  to  give  in  this  chapter  a  complete  de- 
scription of  the  various  and  but  slightly  differing  systems  of 
common-school  education  at  present  in  force  in  the  several 
States ;  such  a  description  would,  in  fact,  occupy  several 
hundred  times  the  space  allowed  to  the  whole  of  the  present 
dissertation  (i.)  I  shall,  on  the  contrary,  content  myself  with  in- 
dicating as  briefly  as  possible  the  constitutional  provisions 
adopted  by  the  various  States  concerning  the  matter  of  public 
instruction,  and  give  an  outline  of  one  typical  system  established 
thereunder,  thus  indicating  the  zealous  spirit  of  the  States  in 
acknowledging  the  national  duty  of  educating  their  citizens,  and 
the  method  which  they  have  introduced  to  fulfill  this  duty. 

The  American  school  systems  as  they  exist  to-day  are  the 
result  of  the  independent  action  of  forty-two  States  and  six 

(i.)  Thus,  for  instance,  the  "Code of  Public  Institution, "of  New  York, alone  fills  nearly 
eleven  hundred  closely  printed  octavo  pages. 


14 


Territories,  each  acting  for  itself.  The  various  statutes  of  these 
States  and  Territories  relating-  to  common  schools  would,  as  I  have 
just  said,  fill  volumes,  and  even  the  extracts  from  their  constitu- 
tions on  this  subject  alone  form  a  good  sized  pamphlet,  (i)  But 
the  result  sought  to  be  attained  is  the  same  in  all.  In  some  of  the 
older  States  it  is  the  growth  of  over  two  hundred  years  of  prac- 
tical experience,  and  this  experience  has  inured  to  the  benefit 
of  the  younger  States.  In  many  instances  the  new  States  have 
undoubtedly  improved  upon  the  old,  and  the  old  States  have 
shown  their  ready  appreciation  by  adopting  the  improvements. 
Hence,  instead  of  such  great  diversities  as  might  naturally  be 
expected  from  the  separate  action  of  so  many  independent 
authorities,  it  happens  that  upon  all  material  points  there  is  a 
remarkable  uniformity.  As  a  general  rule  the  people  are  slow 
to  allow  or  assent  to  changes  in  their  constitutional  provisions, 
even  when  it  is  freely  admitted  that  some  changes  are  desirable. 
In  almost  every  legislative  body  there  will  be  found  a  class  of 
statesmen  who  seem  to  have  no  doubt  of  their  ability  to  im- 
prove upon  any  existing  law  or  system,  and  the  people  seem  to 
expect  and  submit  to  a  certain  degree  of  instability  in  the  statute 
law.  But  when  the  proposition  is  to  change  constitutional  pro- 
visions they  must  be  satisfied  that  some  urgent  necessity  de- 
mands the  change  ere  they  will  consent  to  remove  the  legal 
restriction  which  bar  any  alterations  of  the  fundamental  law, 
and,  as  a  general  rule,  the  change,  when  proposed  must  be  ap- 
proved by  the  popular  vote  before  it  can  become  effective. 
Hence,  when  permanency  is  desired  they  secure  it  by  incor- 
porating the  proposed  ordinances  in  the  constitution. 

The  doctrine  lying  at  the  foundation  of  the  American  school 
system  has  been  said  to  be  expressed  in  the  apothegm,  "An 
ignorant  people  may  be  governed,  but  only  an  educated  people 
can  govern  themselves."  The  doctrine  which  has  been  incor- 
porated into  many  of  the  State  constitutions,  and  is  the  govern- 
ing principle  in  all,  is  that  "  Knowledge  and  learning  as  well  as 
virtue  generally  diffused  throughout  the  community  are  essen- 
tial to  the  preservation  of  a  free  government  and  of  the  rights 
and  liberties  of  the  people."  This  expression  is  embodied  in 
eleven  of  the  State  constitutions,  (2)  which  add  that  it  shall 

(i.)  U.  S.  Bureau  of  Ed.,  Circ.  of  Inf.  of  July  7,  1875,  130  pp. 

(2.)  An  abstract  of  these  constitutional  provisions  is  given  in  the  Bureau  of  Educa- 
tion's Circular  of  Information  No.  3,  1880,  and  more  fully  in  No.  7,  1875. 

15 


therefore  be  the  duty  of  the  legislature  to  encourage  the  promo- 
tion of  intellectual,  moral,  social,  scientific  and  agricultural 
improvement ;  while  eight^say  further  that  it  shall  be  their  duty 
to  encourage  schools  and  means  of  education.  By  the  coVisti- 
tutions  of  all  the  States  except  New  Hampshire  and  Delaware 
the  legislature  are  required  to  provide  a  system  of  free  schools ;  ( i ) 
and  most  of  the  States  have  gone  further  than  this  and  provided 
for  the  setting  apart  of  a  special  State  school  fund,  the  principal 
of  which  is  not  to  be  diminished  and  the  interest  on  which  is 
pledged  for  the  support  of  schools  and  forbidden  to  be  used  for 
any  other  purpose  ;  and  in  addition  an  annual  State  appropria- 
tion, or  the  levy  of  a  special  State  tax  is  made  for  the  same  pur- 
pose. In  many  States  it  is  required  that  at  least  one  school  be 
supported  in  every  district  for  a  certain  specified  time  in  each 
year  as  a  mimimum  limit ;  thus  in  the  three  States  (2)  the 
schools  must  be  held  at  least  six  months,  in  three  others,  (3) 
four  months,  and  in  seven  others,  (4)  three  months  in  each 
year.  In  many  of  the  constitutions  there  are  also  provisions 
for  the  appointment  of  supervisory  officers  who  are  to  have 
charge  of  the  educational  interests  of  the  State,  and  that  of  Vir- 
ginia goes  so  far  as  substantially  to  establish  the  whole  system, 
leaving  but  little  except  details  to  be  provided  by  the  legislature. 
Another  general  constitutional  principle  is  that  no  public  schools 
shall  be  under  the  influence  of,  and  no  public  moneys  be  given 
to,  any  religious  sects  ;  such  is  declared  to  be  the  law  in  thirteen 
States,  (5)  while  in  six  no  sectarian  instruction  is  to  be  permitted, 
either  directly  or  indirectly,  in  any  of  the  State  schools,  (6)  and 
one  (California)  provides  that  no  teacher  or  student  shall  ever  be 
required  to  attend  or  participate  in  any  religious  service  what- 
ever. In  order  to  insure  that  the  people  shall  take  advantage  of 
the  opportunities  for  instruction  offered  by  the  State,  four  con- 
stitutions provide  that  the  legislature  may  enact  laws  requiring 
all  children  of  a  certain  age  to  attend  the  free  school  for  a  cer- 
tain length  of  time, (7)  (as  in  Virginia)  "such  laws  as  shall  not 

(i.)  Stimson's  American  Statute  Law,  p  10. 
(2.)  California,  Nevada  and  South  Carolina. 
(3.)  Missouri,  Mississipi  and  South  Carolina. 

(4.)  Michigan,  Wisconsin,  Iowa,  Kansas,  Colorado,  Nebraska  and  Florida. 
(5.)  New  Hampshire,  Massachusetts,  Pennsylvania,  Illinois,  Michigan,  Wisconsin, 
Minnesota,  Texas,  Missouri,  California,  Colorado,"  Alabama  and  Louisiana. 

(6.)  Wisconsin,  Nebraska,  California,  Nevada,  Colorado  and  South  Carolina. 
(7.)  North  Carolina,  South  Carolina,  Colorado  and  Nevada. 

16 


permit  parents  and  guardians  to  allow  their  children  to  grow 
up  in  ignorance  and  vagrancy."  Higher  education  is  also  an 
object  of  solictitude  in  most  of  the  western  and  southern  States  ; 
in  eighteen  of  them  the  constitution  provided  for  the  establish- 
ment of  a  State  university,  (i)  while  in  Massachusetts^)  and  Con- 
necticut (3)  Harvard  and  Yale  are  especially  recognized  and 
provided  for  in  the  same  way.  All  the  provisions  for  the  pro- 
motion of  education  in  the  various  commonwealths,  to  which  I 
have  just  alluded  are  embodied  in  the  respective  State  constitu- 
tions. But  it  is  not  to  be  supposed  that  in  those  States  whose 
constitutions  make  no  such  explicit  authorization  of  common 
school  systems,  public  sentiment  is  any  the  less  in  favor  of 
popular  instruction,  or  that  the  absence  of  constitutional  pro- 
visions impliedly  prohibit  the  legislature  from  establishing 
means  of  universal  education,  or  from  compelling  their  citizens 
to  avail  themselves  of  them.  The  fact  that  under  our  political 
organization  the  State  governments  are,possessed^of  every  power 
not  expressly  denied  to  them  is  too  familiar  to  require  mention, 
and  I  need  only  allude  to  the  existence  of  free  schools  in  all  the 
States  of  the  Union  and  to  the  absence  of  reported  cases  in 
which  the  power  of  the  legislature  to  established  them  or  to  en- 
force attendance  upon  them  has  been  called  in  question  to  put 
at  rest  any  doubt  concerning  the  constitutionality  of  such  en- 
actments. 

Just  as  in  their  recognition  of  the  importance  of  popular 
education,  so  also  in  their  means  of  providing  it,  there  is 
throughout  the  States  and  Territories  great  unanimity.  I  shall, 
as  above  stated,  of  course  not  attempt  to  give  in  this  place  a 
description  of  these  several  school  systems  ;  but  a  few  general 
remarks  on  the  features  common  to  all,  or  most  of  them,  fol- 
lowed by  an  outline  sketch  of  one  representative  system,  will, 
I  think,  make  their  plan  of  organization  clear. 

In  all  the  States  and  Territories  except  Alaska,  which  has 
as  yet,  no  systematic  public  school  law,  and  New  Mexico, 
where  the  provisions  are  extremely  crude,  the  general  super- 
vision of  educational  interests  is  vested  in  a  State  or  Territorial 

(i.)  Michigan,  Wisconsin,  Iowa,  Minnesota,  Kansas,  Nebraska,  North  Carolina, 
Missouri,  Texas,  California,  Oregon,  Nevada,  Colorado,  Georgia,  Alabama,  Florida, 
South  Carolina  and  Louisiana. 

(a.)  Constitution  8,  i. 

(3  )  Constitution  5,  i. 


Superintendent  with  or  without  a  State  board  of  education. 
In  some  States,  as  Connecticut  and  Massachusetts,  the  sub- 
stantial duties  of  the  State  superintendent  are  devolved  upon  the 
secretary  of  the  State  board.  These  State  boards  are  in  some 
cases  merely  trustees  of  the  school  fund,  and  have  the  care 
and  management  of  the  school  lands  ;(i)  in  some  their  func- 
tions are  simply  advisory  upon  matters  referred  to  them  by  the 
State  superintendent  or  commissioner  ;  while  in  others  they  are 
charged  with  the  general  supervision  of  the  school  system, 
with  power  to  make  and  enforce  rules  and  regulations  for  the 
government  of  the  same.  The  State  superintendents,  with  or 
without  the  direction  of  the  State  boards  are  charged  with  the 
general  supervision  of  the  educational  interests  of  the  State, 
and  with  the  administration  of  the  school  laws.  They  are,  for 
instance,  to  advise  with  and  instruct  the  county  superintend- 
ents and  other  subordinate  school  officers,  to  propose  forms 
and  blanks  for  reports  and  returns,  examine  into  the  workings 
of  the  system,  collect  statistics  and  information,  devise  plans 
for  the  improvement  of  the  schools,  and  generally  make  them- 
selves familiar  with  the  wants  and  necessities  of  the  system, 
and  draw  up  full  reports  for  the  governor  or  legislature.  They 
also  have  general  supervision  of  the  State  normal  schools  and 
institutes  for  the  education  and  instruction  of  teachers  ;  and  it 
is  their  duty  to  apportion  the  State  school  moneys  to  the  coun- 
ties or  towns  in  the  way  provided  by  law.  In  all  the  States 
outside  of  New  England,  (except  Michigan  and  Ohio,  which 
seem  to  have  adopted  substantially  the  New  England  School 
System,  and  Delaware,  where  there  is  no  provision  for  any 
officers  between  the  State  superintendent  and  the  district 
boards),  there  are  county  superintendents  or  county  boards,  or 
both  ;  in  Louisiana  the  parish  boards  corresponding  to  what 
are  in  other  States  the  county  boards.  These  county  boards  or 
county  superintendents  generally  occupy  the  same  position 
.with  reference  to  the  schools  in  the  county,  as  the  State  super- 
intendent does  to  those  of  the  State,  but  subject  to  the  State 
superintendent.  (4)  Under  the  New  England  system,  the  town 

(i.)  As  in  Nebraska.     See  Constitution,  Art  8,  §  i. 

(2  )  As  in  Georgia.     See  Code,  Part  I,  title  XIII,  Chap.  V,  §  1246. 

(3.)  See  Code  of  Virginia,  Chap.  LXVI,  5  1433. 

(4 )  See  Code  of  Tennessee,  Title  7,  Chap.  Ill,  Art.  3,  g  1x81. 

18 


school  committees  or  supervisors  perform  the  duties  in  their 
several  towns,  which  in  the  States  which  have  adopted  the 
county  organization,  are  performed  by  the  county  commis- 
sioner. When  the  county  is  made  the  source  of  power,  it  is 
generally  made  the  duty  of  the  county  school  commissioner  to 
divide  the  territory  into  convenient  sub-districts,  and  establish 
in  each  a  sufficient  number  of  schools  for  the  accommodation 
of  all  children  of  school  age.  In  these  States  the  duty  of  pro- 
viding for  schools  beyond  the  State  provision  is  imposed  by 
law  upon  the  county,  or  the  county  and  school  district,  while 
in  New  England,  and  some  of  the  other  States,  the  town  or 
township  is  the  head,  and  upon  it  is  imposed  the  duty  of  pro- 
viding for  the  support  of  the  schools.  The  school  district  is  a 
territorial  division  of  a  county  or  town,  which  is  recognized 
in  all  the  States  except  Texas,  where  it  seems  probable  that  it 
may  before  long  be  introduced,  (i)  Under  the  laws  of  the 
New  England  States,  while  the  towns  were  to  a  certain  extent 
required  to  provide  for  the  support  of  the  schools,  they  were 
also  to  be  divided  into  school  districts,  the  extent  and  bound- 
aries of  which  were  to  be  determined  by  the  town.  The  dis- 
tricts so  formed  were,  for  school  purposes,  independent  muni- 
cipal corporations.  The  town  was  required  to  levy  a  tax  for 
the  support  of  the  schools,  which  was  to  be  distributed  to  the 
several  districts  as  provided  by  law  or  as  it  might  direct. 
Aside  from  this,  the  district  itself  might  vote  such  additional 
tax  as  it  saw  fit,  for  the  same  purpose.  It  provided  its  school 
houses,  fixed  their  location,  determined  the  time  when  the 
schools  should  open  and  close,  and  managed  its  own  affairs 
through  its  own  officers.  It  was  bound  to  keep  up  its  schools 
for  a  certain  length  of  time  under  competent  teachers,  and  the 
town  committee  determined  who  were  competent  teachers  and 
had  a  general  supervision  of  the  schools.  If  the  district  neg- 
lected or  refused  to  perform  its  statutory  duties,  the  town  or 
its  committee  might  interfere,  employ  teachers,  and  establish 
and  keep  up  the  schools,  and  charge  the  expenses  to  the  town 
or  district.  (2)  The  district  system  is,  however,  rapidly  losing 
popularity,  as  its  extreme  application  of  the  principle  of  local 

(i.)    See  Report  of  Superintendent  of  Public  Instruction  for  1887-1889,  (Texas). 

(2.)  Thus  in  New  Hampshire  the  town  had  charge  of  the  schools  by  act  of  the  Gen- 
eral Council  of  the  Province,  1719,  and  the  supervision  over  them  was  in  the  hands  of  the 
selectmen. 


self-government  has  been  found  prejudicial  to  the  best  educa- 
tional interests  of  the  State.  Hence  in  several  States,  laws 
have  been  passed  authorizing  the  towns  to  abolish  the  dis- 
trict system  and  assume  control  of  the  schools,  (i)  for  which 
purpose  they  therefore  themselves  became  the  school  districts; 
and  in  Massachusetts  the  town  system  has  been  substituted 
for  the  old  system  throughout  the  State.  (2)  In  most  of  the 
States  outside  of  New  England  the  law  makes  the  city,  borough, 
or  township,  the  school  district ;  and  in  States  where  the 
county  is  to  be  divided,  the  formation  of  districts  too  small  in 
means  or  population  to  be  effective,  is  sought  to  be  avoided 
by  forbidding  the  laying  off  of  any  district  unless  it  contains 
a  certain  minimum  number  of  children  of  school  age.  (3) 

So  much  for  the  general  features  of  the  American  educa- 
tional system.  As  an  example  of  the  way  in  which  it  is  worked 
out,  somewhat  more  in  detail,  I  shall  select  the  organization  of 
public  instruction  in  New  York  ;  both  because  that  is  the  largest 
and  most  influential  State  in  the  Union,  and  because  its  system 
of  common  schools  appears  to  be  fairly  representative  of  the 
majority  of  the  others.  (4.) 

In  New  York,  the  officers  having  charge  of  the  public 
schools  are  the  Superintendent  of  Public  Instruction,  the  School 
Commissioners,  and  the  District  Trustees.  The  superintendent 
is  elected  for  three  years  on  joint  ballot  of  both  branches  of  the 
legislature.  (5)  He  has  the  general  supervision  of  all  the 
schools  in  the  State ;  apportions  the  school  money  ;  superin- 
tends the  appointments  by  the  commissioners  ;  and  sees  that  it 
is  paid  by  the  supervisors  and  expended  by  the  trustees  in  the 
manner  provided  by  law.  (6)  He  hears  and  decides  all  appeals 
regarding  school  matters.,  and  his  decision  is  final.  He  is 
charged  with  the  control  and  management  of  the  so-called 
teachers'  institutes,  (7)  and  makes  rules  concerning  district 

(i.)  The  town  has  power  to  abolish  the  district  system.  See  Howard's  Local  Consti- 
tutional History  of  the  United  States,  Vol  I.,  p.  235 

(a  )  Public  Statutes,  chap.  44. 

(3.)  See  Boone's  History  of  Education  in  the  United  States,  p.  96,  for  a  sketch  of  the 
district  system  and  its  faults. 

(4  )  The  following  references  are  to  the  titles  and  sections  of  the  Consolidated  School 
Act  of  1864,  as  amended  and  published  in  the  Code  of  Public  Instruction  of  1887. 

(5.)  Tit  i,  §  .. 

(6  )  Tit.  i,  t  13-14.  He  has  power  to  dismiss  school  commissioners  for  neglect  of 
duty. 

(7)  Teachers' institutes  are  "assemblages  of  teachers  of  public  schools,  called  to- 
gether temporarily  for  the  purpose  of  receiving  professional  instruction  under  the  direc- 
tion of  the  state  school  authorities." 

20 


libraries.  He  receives  and  compiles  reports  from  all  the  school 
districts,  and  sends  in  an  annual  report  to  the  legislature,  (i)  Fjj 
The  School  Commissioners  are  elected  for  three  years  by 
the  people  of  several  school  commissioner  districts.  (2)  It  is 
their  duty  to  see  that  the  boundaries  of  districts  are  correctly 
described;  to  visit  and  examine  the  schools;  to  advise  with 
and  counsel  the  trustees  ;  to  look  after  the  condition  of  the 
school-houses,  and  condemn  such  as  are  unfit  for  use ;  to  recom- 
mend studies  and  text-books ;  to  examine  and  license  teachers  ; 
to  examine  charges  against  teachers,  and,  on  sufficient  proof, 
to  annul  their  certificates  ;  and,  when  required  by  the  superin- 
tendent, to  take  and  report  testimony  in  cases  of  appeal.  (3) 

The  District  Trustees,  one  or  three  in  number  in  each  dis- 
trict, are  elected  by  the  inhabitants.  (4)  The  term  of  office  of  a 
sole  trustee  is  one  year  ;  that  of  each  of  a  board  of  three  trustees, 
three  years,  one  being  elected  annually.  (5)  Theffunctions  of 
these  officers  are  to  make  out  tax  lists  and  warrants  ;|  to  pur- 
chase or  lease  sites,  to  build  or  hire  school-houses,  and  to  have 
the  custody  of  all  district  property  ;  to  employ  and  pay  teachers  ; 
and  to  report  annually  to  the  school  commissioners,  school 
statistics  and  such  other  information  as  may  be  required.  (6) 

The  School  District  is  the  smallest  territorial  subdivision  of 
the  State.  (7)  It  is  formed  by  the  school  commissioner,  who 
makes  an  order  defining  its  boundaries,  and  files  it  in  the  office 
of  the  clerk  of  the  town  in  which  the  district  is  situated.  (8) 
He  may  also  change  the  limits  of  districts  by  a  similar  order. 
A  joint  district  is  one  that  lies  partly  in  two  or  more  school 
commissioners'  districts,  and  it  may  lie  partly  in  two  or  moie 
counties.  (9)  There  are,  besides,  so-called  Union  Free  School 
Districts,  formed  under  the  law  1853,  authorizing  the  inhabi- 
tants to  organize  a  school  in  a  district  comprising  more  terri- 
tory and  population,  and  possessing  greater  powers,  than  an 
ordinary  district.  (10)  In  addition  to  these,  over  a  hundred  dis- 

(i.)  Tit.  i,§  14. 

(2.)  Tit  2,  §  3. 

(3.)  Tit.  2,  §  13-15. 

(4.)  Tit.  7,  §  27. 

(5.)  Tit.  7,  §  25. 

(6.)  Tit.  7,  I  49. 

(7.)  There  were  in  1888,  11,245  school  districts  in  this  State. 

(8.)  Tit.  6,  §  i. 

(9.)  Tit.  6,  S  i,  see  2. 

(10.)  Title  9. 

21 


tricts  have  been  formed  by  individual  acts  of  the  legislature, 
granting  special  powers  and  privileges,  (i)  The  inhabitants, 
at  the  annual  district  meeting,  have  power  to  elect  a  chairman, 
one  or  three  trustees,  a  district  clerk,  a  collector,  and  a  libra- 
rian, to  designate  a  site  for  a  school  house,  to  vote  taxes  to 
pay  for  a  site,  to  build  and  repair  school-houses,  and  to  furnish 
them  with  fuel  and  appendages,  and  also  to  make  up  deficien- 
cies for  teacher's  wages.  (2)  They  have  also  power  to  vote 
certain  taxes  not  exceeding  specified  sums  for  particular  pur- 
poses, and  any  sum  necessary  to  insure  the  district  property 
and  pay  the  costs  and  reasonable  expenses  of  suits  at  law  in 
which  the  district  may  be  interested.  The  librarian  serves  one 
year,  and  has  (of  course)  charge  of  the  district  library.  (3)  The 
collector  serves  for  one  year,  giving  a  bond  for  the  faithful  dis- 
charge of  his  duty  in  collecting  the  taxes  and  holding  them 
subject  to  the  order  of  the  trustees.  (4)  The  clerk  of  the  dis- 
trict also  holds  office  for  one  year,  and  it  is  his  duty  to  keep  a 
record  of  the  district  meetings ;  to  notify  persons  elected  as 
district  officers  ;  to  report  to  the  town  clerk  the  names  and  ad- 
dresses of  district  officers ;  to  give  the  trustees  notice  of  every 
resignation  accepted  by  the  supervisor ;  and  to  keep  and  pre- 
serve all  records,  books  and  papers  belonging  to  the  office.  (5) 
The  town  clerk  is  required  to  keep  in  his  office  all  books,  &c., 
relating  to  to  the  school ;  to  record  the  certificate  of  appor- 
tionment of  school  moneys,  and  to  notify  the  trustees  of  such 
certified  apportionments ;  to  obtain  from  trustees  their  annual 
reports ;  to  provide  them  with  books  and  blanks ;  to  file  and 
record  the  final  accounts  of  supervisors ;  to  file  and  keep  the 
description  of  district  boundaries  ;  and,  when  required,  to  take 
part  in  the  formation  or  alteration  of  a  school  district.  (6) 

The  school  moneys  apportioned  to  the  several  towns  are 
paid  by  the  county  treasurer  to  the  supervisor,  after  having 
been  received  by  him  from  the  State  treasurer  on  the  warrant 
of  the  superintendent  of  public  instruction.  (7)  These  moneys  are 

(i.)  See  N.  Y.  Code  of  Public  Instruction,  pp.  795.  ff. 

(2.)  Tit.  7,  815- 

(3.)  Tit  7,  5  38. 

(4.)  Tit  7.  §  16. 

(5  )  Tit.  7.  I  37. 

(6.)  Tit.  5.  8  «• 

(7.)  Tit.  3.  8  3- 


22 


derived  from  the  following  sources  :    i.    The  income  of  the 
common  school  fund,  which  in   1888  amounted  to  $170,000. 

2.  The  amount  the  legislature  may  annually  set  apart  from  the 
income  of  the  United  States  deposit  fund  (in  1888,  $75,000). 

3.  A  State  tax,  similar  to  the  general  property  tax.  (i)    These 
moneys  constitute  the  Free  School  Fund  of  the  State,  and  in 
addition  to  its  share  of  this  fund  each  locality  derives  school 
moneys  from,  4.  District,    village  and  city  taxation.      5.  The 
income  from  various  local  funds.      The  State   Free  School 
Funds  are  distributed  in  substantially  the  following  manner  :  (2) 
The  superintendent  of  public  instruction,  after  ascertaining  the 
amounts  to  be  apportioned,  sets  apart  from  the  income  of  the 
United  States  deposit  fund :  i.  The  amount  necessary  to  pay 
the  salaries   of  the  school  commissioners.     2.  To  each  city 
having  a  superintendent  of  common  schools,  or  clerk  of  the 
board  of  education  performing  the  duty  of  superintendent,  the 
sum  of  $800,  and  in  case  any  city  is  entitled  to  more  than  one 
member  in  the  State  assembly,  $500  for  each  additional  mem- 
ber for  the  free  schools  of  the  city.     3.  For  libraries,  such  sums 
as  the  legislature  may  appropriate.     4.  He  then  sets  apart  from 
the  free  school  fund,  $4,000  for  a  contingent  fund,  and  5.  A 
sum  for  the  Indian  schools,  the  same  in  proportion  to  their  num- 
bers   as    is    apportioned    to    the    regular    schools.      6.     He 
next  ascertains  the  total  so  apportioned,  and  deducts  it  from 
the  total  school  moneys  appropriated,  and  divides  the  remainder 
into  two  parts,  one  of  which,  7.  Is  divided  by  the  whole  num- 
ber of  qualified  teachers  in  the  State  employed  at  least  twenty- 
eight  weeks  a  year,  to  ascertain  the  "district  quota,"  and  is 
distributed  among  the  districts,  one  quota  for  each  such  teacher ; 
and  8.  the  other  of  which,  and  also  the  library  moneys,  are 
divided  among  the  counties  according  to  their  population. 
Finally,  9.   He  apportions  an  equitable  sum  for  each  separate 
neighborhood,  which  has  duly  reported  to  him,  from  the  con- 
tingent fund.     He  then  certifies   the   amount   apportioned  to 
each  city  or  county  to  the  city  or  county  treasurer ;   (3)  and 
the  school  commissioners  having  received  such  certificates 
meet,  at  the  court-house  in  their  respective  counties,  on  the 

(x.)  This  rate  is  frequently  changed.    In  1888  it  was  only  one  mill  on  the  dollar, 
(a.)  Title  3, 
(3.)  Tit.  3,  I  13. 


third  Tuesday  in  March  in  each  year,  and  apportion  the  money 
to  the  districts  as  follows  :  (i)  i.  They  must  set  apart  to  each 
district  the  district  quotas  allowed  by  the  State  superintendent; 
2.  They  set  apart  any  money  assigned  to  districts  as  equitable 
allowances ;  3.  They  divide  the  remainder  into  two  equal 
parts,  one  of  which  they  distribute  among  the  districts  in  pro- 
portion to  the  number  of  children  of  school  age  residing  in 
each,  and  the  other  according  to  the  average  daily  attendance 
of  resident  pupils;  and  4.  they  apportion  the  library  money 
also  according  to  the  number  of  children  of  school  age.  They 
then  sign  their  apportionment  in  duplicate,  sending  one  copy 
to  the  superintendent  of  public  instruction  and  delivering  the 
other  to  the  county  treasurer  ;  and  also  certify  to  each  super- 
visor the  amount  apportioned  to  each  district  in  his  town, 
designating  the  library  money  and  that  for  teachers'  wages. 

The  above  sketch  of  the  New  York  system  of  public  in- 
struction, its  organization,  and  the  sources  and  disposition  of 
its  income,  omitting  all  consideration  of  features  due  to  circum- 
stances peculiar  to  this  State,  may  fairly  be  taken  as  an  illus- 
tration of  the  common  school  systems  throughout  the  country  ; 
for,  as  stated  before,  while  differing  somewhat  in  their  nomen- 
clature and  their  details,  their  objects  and  in  a  general  way 
their  means  of  attaining  them,  are  on  the  whole  essentially 
similar.  (2)  One  important  divergence  from,  or  rather  further 
development  of,  the  usual  system  of  public  instruction,  is,  how- 
ever, to  be  noted.  I  refer  to  the  plan  of  providing,  in  addition 
to  the  ordinary  common  schools  for  imparting  mere  primary 
instruction,  a  number  of  free  schools  or  academies  for  secondary 
education,  carefully  graded,  and  regarded  on  the  one  hand  as 
complimentary  to  the  primary  schools,  and  on  the  other  as 
introductory  to  the  courses  of  superior  and  professional  instruc- 
tion offered  in  the  State  University.  This  system,  which  has 
never  been  regarded  with  much  favor  in  the  Eastern  States, 
is,  while  undeniably  beneficial  to  the  cause  of  scholarship  and 
sound  learning,  as  is  evidenced  by  its  results  in  those  countries 

(i.)  Tit.  3,  §  27. 

(2.)  The  chief  difference  to  be  noticed  in  the  plans  of  organization  of  the  various 
school  systems  is  the  difference  in  the  amount  of  control  exercised  by  the  central  authority. 
As  extremes,  illustrating  the  two  methods,  Virginia  and  New  Hampshire  may  be  taken  ; 
the  former  having  an  almost  completely  centralized  system,  the  latter  leaving  all  control  to 
the  local  authorities.  See  Code  of  Virginia,  Section  1433;  and  General  Laws  of  New 
Hampshire,  Chap.  92. 


of  Europe  where  it  has  been  most  consistently  applied,  at  the 
same  time  open  to  the  grave  charge  of  being,  as  it  is  somewhat 
vaguely  expressed,  "unconstitutional,"  or,  more  correctly, 
opposed  to  the  spirit  of  our  institutions.  It  is  argued,  and  with 
some  show  of  reason,  that  although  a  common  school  educa- 
tion is  essential  to  the  self-preservation  of  a  democratic  com- 
munity, a  college  education  is  to  be  regarded  as  an  intellectual 
luxury,  to  be  paid  for  by  the  person  desiring  to  obtain  it,  and 
not  properly  chargeable  upon  the  people  at  large.  This  is  the 
Eastern  way  of  looking  at  it.  In  the  West  it  is  frequently  held 
that  whatever  tends  to  further  the  advancement  of  science  and 
the  arts,  even  though  the  cultivation  merely  of  a  chosen  few, 
tends  indirectly  but  necessarily  to  better  the  community  at 
large,  and  is  thus  a  justifiable  object  of  expenditure  of  the 
public  money.  The  most  signal  instance  of  the  systematic  and 
apparently  successful  working-out  of  this  high-school  and  uni- 
versity plan  is  to  be  found  in  Michigan,  where  it  has  been  in 
operation  for  many  years ;  and  the  application  of  the  doctrine 
seems  to  be  growing  in  extent  throughout  the  Western  States. 


CHAPTER  IV. 

THE  LEGAL  RELATIONS  OF  THE  PUBLIC  SCHOOLS. 

It  must  not  be  presumed  from  the  heading  of  the  present 
chapter,  that  it  is  intended  to  give  anything  like  a  complete 
exposition  of  the  legal  relations  existing  between  the  common- 
schools  and  the  community.  The  immense  number  of  these 
apparently  humble,  but  all-important  institutions ;  the  great 
diversity  of  opinions  necessarily  subsisting  among  the  widely 
different  classes  whose  interests  they  must  at  the  same  time  be 
made  to  serve  ;  and  the  continually  reviving  suspicion  that  they 
are  being  used  for  sinister  or  party  purposes — all  conspire  to 
render  them  a  perpetual  source  of  contention  and  a  fruitful  sub- 
ject of  litigation.  The  cases  in  the  courts  of  last  resort  in  the 
several  States  in  which  judicial  interference  has  been  invoked 
to  put  at  rest  disputes  concerning  questions  involving  public 
school  matters,  as  abstracted  in  the  United  States  Digest,  (up  to 


and  including  1887),  number  no  less  than  one  thousand  six 
hundred  and  forty  three  (1643) ;  and  their  legal  status  as  thus 
determined  is  as  full  of  complexity  as  it  is  void  of  interest.  The 
circumstance  that  the  common-school  systems,  and  the  powers, 
duties  and  liabilities  of  their  officers  are  almost  entirely  regu- 
lated by  express  legislative,  and  often  merely  local  action,  or 
left  to  uncontrolled  administrative  ordinance,  of  course  makes 
the  several  States  quite  independent  of  one  another  in  point  of 
school-law,  and  hence  there  are  but  few  questions  a  judicial 
decision  concerning  which  in  one  State  could  be  confidently 
quoted,  even  as  a  reference,  in  the  courts  of  another.  There  is, 
however,  one  of  these  questions  which,  both  from  its  very 
general  application  and  its  extreme  importance,  bears  directly 
on  the  subject  of  this  essay,  and  to  a  brief  consideration  of  which, 
as  illustrated  by  a  few  reported  cases,  I  shall  devote  the  present 
chapter ;  I  refer  to  the  question  concerning  the  constitutionality 
of  legislative  acts  establishing  and  regulating  systems  of  com- 
mon schools. 

It  seems  somewhat  strange  at  first  sight  that,  in  view  of  the 
fact  that  the  universal  sentiment  in  civilized  communities  is  in 
favor  of  regarding  education,  at  least  in  its  elements,  as  an  un- 
questionably proper  object  of  government  expenditure,  and 
that  so  many  of  our  State  constitutions  have  emphatically  recog- 
nized the  correctness  of  this  view,  there  should  still  appear  to 
be  some  doubt  as  to  the  constitutionality  of  legislative  acts 
establishing  a  system  of  common-schools  in  those  of  the  States 
where  no  such  express  provision  exists.  It  is  of  course  unques- 
tioned that  under  the  American  system  of  government,  the 
people  are  recognized  as  possessing  in  their  primary  organized 
capacity  the  absolute  and  complete  power  of  legislation  as  fully 
and  to  the  same  extent  as  belongs  to  every  uncontrolled  sover- 
eignty ;  that  in  the  organization  of  the  Federal  and  State  systems 
of  government,  they  have  conferred  upon  the  former,  by  the 
constitution  of  the  United  States,  exclusive  legislative  power  in 
respect  to  certain  matters  and  prohibited  its  exercise  in  respect  to 
others,  and  that,  save  as  thus  conferred  or  forbidden,  they  have 
in  this  condition  entrusted  the  legislative  departments  which 
they  have  created,  with  the  whole  power  of  making  laws  which 
they  originally  possessed,  subject  only  to  such  restrictions  and 
limitations  as  they  have  prescribed  in  the  State  constitutions. 

26 


But  these  constitutions  usually  declare,  expressly  or  by  implica- 
tion, that  the  citizens  under  them  shall  in  no  case  be  deprived 
of  their  property  (as  by  taxation),  except  for  purely  public  pur- 
poses ;  and  the  question  then  arises  as  to  whether  the  mainten- 
ance of  a  system  of  government  schools  for  free  popular 
instruction  is  so  useful  or  necessary  for  the  community  as  really 
to  be  a  public  purpose  justifying  the  levy  of  a  general  tax. 
This  question  was  discussed  at  a  comparatively  recent  date  in 
Maine,  when  the  legislature,  before  levying  a  tax  for  common 
schools,  inquired  of  the  Supreme  Court  concerning  its  constitu- 
tionality. The  court  decided  that  a  clause  in  the  State  consti- 
tution empowering  the  legislature  to  make  "all  reasonable  laws 
and  regulations  for  the  benefit  of  the  people  of  the  State,  not 
repugnant  to  the  constitution  of  this  State  nor  to  that  of  the 
United  States,"  included  the  power  to  levy  a  school-tax,  for 
"education  being  of  benefit  to  the  people,  and  taxation  being 
incidental  and  essential  to  its  promotion,  the  mill-tax,  being  for 
educational  purposes,  must  be  regarded  as  constitutional  unless 
in  some  other  portions  of  the  constitution  there  be  found  a 
clause  restricting  or  forbidding  the  raising  of  money  by  legisla- 
tive action,  for  educational  purposes,  thereby  limiting  the  power 
naturally  inferable  from  §  i,  which  has  already  been  quoted." 
Nor  can  the  amount  of  this  tax  be  in  any  way  limited  by  the 
courts,  "for  it  is  not  for  the  judicial  department  to  determine 
when  legitimate  taxation  ends,  and  spoliation  by  excessive  tax- 
ation begins?"  (Opinion  of  the  Justices,  68  Me.  592). 

And  it  has  further  been  decided,  (Stuart  vs.  District  of 
Kalamazoo,  30  Mich.,  69),  that  this  power  extends  even  to  the 
levying  of  taxes  for  the  support  of  high  schools  for  instruction, 
(among  other  things),  in  ancient  and  modern  languages  ;  and 
that  the  school  officers  need  not  restrict  themselves  in  their 
expenditures  to  such  subjects  of  study  as  are  ordinarily  under- 
stood as  pertaining  to  a  common  school  education.  In  giving 
the  opinion  of  the  court,  Judge  Cooley  said  :  "Neither  in  our 
State  policy,  in  our  constitution,  nor  in  our  laws,  do  we  find 
the  primary  school  districts  restricted  in  the  branches  of 
knowledge  which  their  officers  may  cause  to  be  taught,  or  the 
grade  of  instruction  that  may  be  given,  if  their  voters  consent 
in  regular  form  to  bear  the  expense  and  raise  the  taxes  for  the 
purpose."  So  too  in  an  Illinois  case  (Richards  vs.  Raymond, 


27 


92  111.,  612),  the  court  remarked:  "While  the  constitution  has 
not  defined  what  a  good  common  school  education  is,  and  has 
failed  to  prescribe  a  limit,  it  is  no  part  of  the  duty  of  the 
courts  of  the  state  to  declare  by  judicial  construction,  what 
particular  branches  of  study  shall  constitute  a  good  common 
school  education."  Upon  the  same  principles  the  legislature 
or  the  executive  may,  when  the  state  constitution  makes  pro- 
vision for  free  schools,  establish  a  system  of  normal  schools, 
for  it  has  been  held  (Briggsr>s.  Johnson  County,  4  Dillion,  148), 
that  "the  [State]  constitution  having  vested  all  legislative 
power  not  prohibited  by  the  Constitution  of  the  United  States 
in  the  General  Assembly,  the  establishing  of  normal  or  other 
schools  than  those  named,  it  is  fair  to  presume,  was  intended 
to  be  left  with  the  legislature.  That  normal  schools  are  pub- 
lic institutions,  useful  and  necessary  for  the  full  development 
of  free  schools,  is  not  disputed. "  The  power  of  the  State 
government  when  not  limited  by  the  constitution,  is  thus 
seen  to  be  very  great  in  the  matter  of  public  instruction.  For 
the  same  reasons  that  the  legislature  has  power  to  establish  a 
school  system,  it  also  has  power  to  abolish  or  otherwise 
change  it,  and  the  inhabitants  of  the  school  districts  have  no 
rights  in  the  existence  nor  in  any  of  the  corporate  functions  of 
the  district,  which  can  be  regarded  as  vested  legal  rights,  or 
which  can  in  any  way  be  set  up  as  beyond  legislative  control. 
This  question  arose  in  Massachusetts  in  consequence  of  the 
enactment  of  statutes  abolishing  school  districts  and  estab- 
lishing town  systems,  (to  which  I  have  referred  above,  supra 
p.  20,)  and  the  court  held  that  such  statutes  were  not  uncon- 
stitutional. For  it  was  considered  that,  although  before  the 
enactment  of  these  laws,  school  districts  were  indeed  quasi- 
corporations,  with  the  power  to  hold  property,  to  raise  money 
by  taxation  for  the  support  of  schools,  and  with  certain  defined 
public  duties ;  still  they  were  public  and  political  as  dis- 
tinguished from  private  corporations,  and  their  rights  were 
held  at  the  will  of  the  legislature,  to  be  modified  or  abolished 
as  the  public  wellfare  might  require.  Hence  the  property  held 
by  them  for  public  use,  was  subject  to  such  disposition  in  the 
promotion  of  the  objects  for  which  it  was  held,  as  the  supreme 
legislative  power  might  see  fit  to  make.  The  laws  in  question 
did  nothing  more  ;  they  provided  merely  for  the  transfer  of 

28 


public  property,  and  of  a  public  duty  connected  with  its  use 
from  one  public  corporation  to  another.  (Rawson  vs.  Spencer, 
113  Mass.,  40.) 

But  though  the  legislature  or  its  agents  thus  have  power 
under  the  constitution  to  establish  or  abolish  school  districts, 
and  to  empower  them  to  raise  money  by  taxation,  the  courts 
will  hold  them  very  strictly  to  applying  the  funds  so  raised  for 
the  exact  purpose  for  which  they  were  intended.  So  if  a  fund 
is  provided  by  the  constitution  for  free  public  schools,  it  can 
only  be  applied  to  such  schools  as  are  within  the  uniform 
system  required,  free  from  religious  or  sectarian  control,  and 
open  to  all  children  of  school  age,  (Otkin  vs.  Lamkin,  56 
Miss.,  758  ;  and  in  a  case  in  Massachusetts,  under  a  constitu- 
tional provision  requiring  moneys  raised  for  public  schools  to 
be  applied  only  to  those  under  the  charge  of  the  public 
authorities,  it  was  denied  that  a  town  could  appropriate 
moneys  raised  for  public  schools  to  the  support  of  a  school 
founded  by  a  bequest  under  which  the  management  of  the 
school  was  vested  in  trustees  who,  though  most  of  them 
elected  by  the  town,  must  be  connected  with  certain  religious 
societies.  (Jenkins  vs.  Andover,  103  Mass.,  94.) 

Closely  connected  with  this  subject  is  one  which  has, 
next  to  the  religious  disputes,  been  a  source  of  more  frequent 
and  more  bitter  controversy  than  any  other  of  those  concern- 
ing public  schools;  that  is  to  say,  the  constitutionality  of  race 
distinctions  in  the  extension  of  common  school  privileges. 
This  question  did  not,  of  course,  present  itself  for  judicial  con- 
sideration until  after  the  passage  of  the  Fourteenth  Amendment; 
but  during  the  years  immediately  following  the  rebellion,  it 
was  very  thoroughly  discussed,  and  definitely  settled.  The 
numerous  decisions  relative  to  the  school  rights  of  colored 
children,  appear  to  justify  the  following  propositions.  In  the 
first  place,  no  person  can  be  deprived  of  equal  educational 
privileges  with  the  whites,  merely  because  he  is  colored.  It 
has  been  held  that  the  exclusion  of  colored  children  from 
schools  where  white  children  attend  as  pupils,  cannot  be  sup- 
ported except  where  separate  schools  are  actually  maintained 
for  the  education  of  colored  children,  and  that  unless  such 
schools  be,  in  fact,  maintained,  all  children  of  the  school  dis- 
trict, whether  white  or  colored,  have  an  equal  right  to  become 


29 


pupils  at  any  common  school  organized  under  the  laws  of  the 
state;  (Ward  vs.  Flood,  48  Cal.,  56;)  and,  as  was  remarked 
by  Baxter,  C.  J.,  in  his  charge  to  the  jury  in  the  case  of  The 
United  States  vs.  Buntin,  10  Fed.  Rep.,  735,  "if  you  find  tha 
the  said  colored  school  was  so  remote  from  the  prosecuting 
witnesse's  residence,  that  he  could  not  attend  it  without  going 
an  unreasonable  and  oppressive  distance ;  that  he  was  thus 
placed  at  a  material  disadvantage  with  his  white  neighbors  ; 
that  the  school  did  not  offer  substantially  the  same  facilities 
and  educational  advantages  that  were  offered  in  the  school 
established  for  the  white  children,  and  from  which  he  had 
been  excluded,  then,  and  in  that  event,  he  was  entitled  to  ad- 
mission in  said  last  named  school,  and  his  exclusion  therefrom 
was  a  denial  and  a  deprivation  of  his  constitutional  right." 

But,  secondly,  it  has  been  decided  that  such  separate 
schools  for  the  colored  race  are  not  forbidden  by  the  Fourteenth 
Amendment ;  and  that  laws  passed  to  establish  such  schools 
are  not  unconstitutional ;  for  they  do  not  attempt  to  deprive 
colored  persons  of  their  rights,  but  on  the  contrary  expressly 
recognize  their  right  to  equal  educational  advantages,  and 
only  regulate  the  mode  and  manner  in  which  the  right  shall 
be  enjoyed.  (Slate  z>s.  McCann,  21  Ohio  St.,  210.)  Thus  in 
the  case  of  Cory  vs.  Carter,  48  Ind  ,  362,  the  court  declared 
that  "  the  classification  of  scholars  on  the  basis  of  race  or 
color,  and  their  education  in  separate  schools,  involve  ques- 
tions of  domestic  policy  which  are  within  the  legislative  discre- 
tion and  control,  and  do  not  amount  to  an  exclusion  of  either 
class.  In  other  words,  the  placing  of  the  white  children  of  the 
state  in  one  class,  and  the  negro  children  of  the  state  in  another 
class,  and  requiring  these  classes  to  be  taught  separately,  pro- 
vision being  made  for  the  same  branches,  according  to  age, 
capacity  or  advancement,  with  capable  teachers,  and  to  the 
extent  of  their  pro  rata  share  in  the  school  revenue,  does  not 
amount  to  a  denial  of  equal  privileges  to  either,  or  conflict  with 
the  open  character  of  the  system  required  by  the  constitution. 
The  system  would  be  equally  open  to  all.  The  tuition  would 
be  free.  The  privileges  of  the  schools  would  be  denied  to 
none."  It  is,  however,  thirdly,  to  be  remarked,  that  this 
power  of  separating  the  races  is  vested  exclusively  in  the  State 
Legislature,  and  that  unless  some  statute  can  be  found  authoriz- 


ing  the  establishment  of  special  schools  for  colored  children,  no 
such  authority  exists.  This  was  held  in  the  case  of  Clark  vs. 
The  Board  of  Directors,  24  Iowa,  266,  the  substance  of  the 
decision  in  which  is,  that,  as  all  the  youth  are  equal  before  the 
law,  and  there  is  no  discretion  vested  in  the  board  of  directors 
or  elsewhere  to  disturb  that  equality,  such  board,  while  it  may 
enforce  uniform  restrictions  as  to  residence,  age,  etc.,  has  no 
power  to  deny  a  youth  admission  to  any  particular  school 
because  of  nationality  or  color. 

So  much  for  the  decisions  of  the  courts  concerning  the 
leading  questions  on  the  constitutionality  of  legislative  enact- 
ments relative  to  the  establishment  of  common  schools,  an  out- 
line of  the  general  trend  of  which  is,  I  hope,  intelligibly  indi- 
cated in  the  foregoing  sketch.  In  the  following  chapter  I  shall 
endeavor  to  exhibit  with  more  completeness,  the  legal  status, 
powers,  and  duties  of  our  higher  institutions  of  learning, 
private  as  well  as  public. 


CHAPTER  V. 
THE  LEGAL  RELATIONS  OF  THE  AMERICAN  COLLEGE. 

In  considering  the  legal  relations  of  our  American  institu- 
tions of  superior  instruction,  we  are  confronted  at  the  outset 
with  a  two-fold  difficulty  :  in  the  first  place  the  college  may  be 
both  instituted  and  controlled  by  the  State  in  such  a  way  as  to 
make  it  a  mere  department  or  instrument  of  government,  and 
thus,  like  the  other  departments,  have  its  rights,  duties  and 
functions  laid  down  in  the  act  creating  it,  or  it  may  be,  as  is 
more  frequently  the  case,  a  private  enterprise,  subject  to  no 
control  whatever,  save  that  general  restraint  which  is  exercised 
.over  all  persons,  natural  or  legal,  in  protection  of  the  private 
rights  of  society.  In  either  case  the  interference  of  the  courts 
can  only  be  called  into  requisition  under  extraordinary  circum- 
stances, and  the  consequent  infrequency  of  their  action  in  mat- 
ters pertaining  to  college  management  causes  the  number  of 
reported  cases  on  the  subject,  which  constitute,  of  course,  the 
only  authentic  literature  concerning  it  to  be  very  unsatisfactorily 


scanty.  This  evil  is  further  increased,  or  perhaps  rather  caused 
by  the  fact  that  our  colleges  have  not,  as  have  the  analogous 
institutions  both  in  England  and  on  the  Continent,  any  definitely 
fixed  position  in  the  mind  of  the  community  ;  they  play  no  such 
determined  part  in  our  popular  national  life  or,  it  is  to  be  feared, 
in  the  development  of  our  civilization.  They  have  no  prescrip- 
tive rights  over  the  people,  nor  can  the  people  make  any  claims 
upon  them,  other  than  those  of  ordinary  contract.  Hence  the 
colleges  are  left  largely  to  themselves,  and  govern  themselves 
as  they  see  fit ;  and  no  matter  howbadly  this,  their  self-govern- 
ment, may  be  managed,  looked  at  from  the  standpoint  of  the 
public  weal,  still  no  person  not  showing  direct  personal  damage 
and  injury  from  such  misdirection  of  powers  or  misappropriation 
of  funds,  would  think  of  calling  them  to  account  or  would  have 
the  assistance  of  the  courts  in  case  he  attempted  to  do  so. 
Neither,  on  the  other  hand,  would  the  colleges  venture  to  assume 
any  prerogative  rights  in  virtue  of  their  collegiate  character  in 
imitation  of  their  European  prototypes,  nor  could  such  pretended 
privileges,  in  case  of  their  possible  assertion,  be  enforced.  An 
examination  of  our  educational  system  shows  that  in  nearly 
all  cases,  the  colleges  are,  as  above  intimated,  either  a  superior 
branch  of  the  general  system  of  State  instruction,  or  else  con- 
nected with,  and  subject  to  the  control  of  the  State  only  in  the 
way  in  which  all  other  private  corporations  are,  namely,  by  the 
fact  that  they  have  received  from  the  State  a  charter  of  incor- 
poration to  whose  provisions  they  are  held  more  or  less  strictly 
to  conform.  The  only  notable  exception  to  this  rule,  the  only 
instance  in  which  a  State  exercises  (or  professes  to  exercise)  a 
general,  indirect  control  over  incorporated  educational  institu- 
tions of  a  private  character,  is  to  be  found  in  the  State  of  New 
York,  of  whose  Board  of  Regents  I  shall  hereafter  speak  more 
at  length  (infra  p.  35.) 

A  more  complete  understanding  of  the  nature  of  our  college 
corporations,  which  I  shall  attempt  to  illustrate  by  a  commentary 
on  the  cases  preserved  in  the  reports  of  the  courts  of  last  resort 
in  the  various  States,  will  be  obtained  by  a  brief  consideration 
of  the  organization  of  two  colleges  representative  of  the  two 
classes  into  which,  as  I  have  above  stated,  nearly  all  institutions 
of  this  character  may  be  divided.  As  an  example  of  the  cor- 
porations of  a  purely  private  character  I  have  selected  Dart- 


mouth  College,  and  as  an  example  of  those  cases  in  which  the 
college  is  looked  upon  as  a  public  corporation  or  instrument  of 
government,  I  have  taken  the  University  of  Missouri ;  the  first 
because  it  is  a  fair  typical  specimen  of  the  American  college  as 
ordinarily  understood  and  also  because  it  was  the  subject  of  a 
famous  law  suit  which  definitely  established  the  legal  rights  of 
such  institutions  as  against  the  State  ;  the  second  because  it  is 
a  representative  instance  of  the  "State  University." 

The  following  was  the  method  of  organization  of  Dartmouth ; 
and  the  same  description,  mutatis  mutandis,  may  be  said  to  be 
true  of  by  far  the  greater  number  of  the  three  or  four  hundred 
colleges  now  existing  in  this  county,  (i)  A  public-spirited  in- 
dividual (in  the  present  instance  a  certain  L.  Wheelock)  being 
charitably  disposed  and  of  the  opinion  that  it  was  expedient  for 
the  advancement  of  learning  that  another  college  be  established 
and  endowed,  both  himself  gave,  and  by  his  exertions  and 
examples  induced  others  to  give,  sums  of  money  for  beginning 
and  carrying  on  the  undertaking.  These  funds  were  put  in  the 
hands  of  trustees,  to  whom  were  given  certain  directions  as  to 
the  disposal  of  them,  whereupon  these  trustees,  finding  it  neces- 
sary for  the  perpetuation  of  the  trust  to  become  a  body  corpor- 
ate, applied  to  the  legislature  for  a  charter  of  incorporation. 
The  charter  was  of  course  readily  granted,  and  by  its  acceptance 
the  college  sprang  into  being.  The  charter  determined  the 
number  and  manner  of  appointing  trustees,  and  enumerated 
their  powers,  enabling  them  to  sue  and  be  sued  by  a  corporate 
name,  to  buy  and  hold  lands  for  college  purposes,  to  receive 
and  hold  property  not  exceeding  a  certain  amount,  to  appoint 
and  pay  professors  and  instructors,  to  establish  by-laws  and 
ordinances,  to  have  a  common  seal,  to  grant  such  degrees  as 
were  usually  granted  in  Great  Britain,  &c.,  &c.  Thus  the  college 
was  instituted,  and  under  this  charter,  which,  it  will  be  observed, 
does  not  reserve  to  the  State  any  right  of  supervision,  the  trus- 
tees proceeded  to  act  as  best  they  saw  fit,  without  the  possibility 
of  legal  interference  to  control  them  in  doing  as  they  pleased 
on  the  score  of  "promoting  learning."  To  what  an  extent  this 
freedom  may,  in  the  opinion  of  the  courts,  be  carried,  I  will 
presently  (infra  p.  44,)  cite  a  reported  case  to  show.  Such,  or 

(i  )  See  sketch  of  the  early  history  of  the  college  in  Dartmouth  College  -vs.  Woodward, 
4  Wheaton,  518. 


33 


similar,   is  the  origin,  and  consequent  independence  of  most 
collegiate  institutions  in  this  country. 

Of  an  entirely  different  nature  are  the  so-called  State  Uni- 
versities, of  which  the  University  of  Missouri  may  be  taken  as 
a  typical  example,  (i)  Here  the  college  is  not  indebted  for  its 
birth  or  its  continued  existence  to  private  donations.  It  is 
established  by  a  legislative  act,  and  the  expenses  of  its  erection 
and  maintenance  are  defrayed  from  the  public  funds.  It  is 
considered  to  be  a  branch  of  the  State  government,  just  as  are 
the  public  schools.  It  is  declared  to  be  a  body  politic,  whose 
government  is  vested  in  a  board  of  nine  curators,  appointed  by 
the  governor,  with  the  consent  of  the  senate.  This  board  has 
power  to  appoint  and  remove,  at  its  discretion,  the  president, 
professors  and  tutors  of  the  university,  and  is  obliged  to  sub- 
mit regular  reports  to  the  legislature. 

Institutions  of  this  nature  are  thus  seen  to  be  mere  instru- 
ments of  government,  and  their  officers  are,  like  other  public 
officials,  controllable  only  by  the  regular  writs  or  by  special 
actions  for  damages.  (See  Head  vs.  Curators  of  the  University 
of  Missouri,  47  Mo.,  220.)  The  circumstance  that  they  are 
institutions  of  learning  does  not  endow  them  with  any  peculiar 
features. 

It  is  true  that  there  are,  between  these  two  extremes  of  the 
scale,  some  institutions  which,  though  of  an  essentially  private 
character,  are  yet  so  organized  as  to  be  subject  more  or  less 
to  State  control ;  but  when  such  a  relation  exists,  the  connec- 
tion is  usually  merely  nominal,  or,  if  the  claims  of  the  State 
are  sought  to  be  enforced,  there  result  political  jealousy  and 
general  dissatisfaction.  Of  such  a  character  was,  until  1866, 
the  organization  of  Harvard  University.  The  State,  claiming 
as  founder  and  patron,  regarded  the  college  as  a  State  institu- 
tion, over  which  it  had  a  right  to  exercise  a  direct  control 
through  the  legislature  by  its  authority  in  the  membership  and 
the  election  of  a  so-called  board  of  overseers ;  but  the  contro- 
versies and  embarrassment  attendant  upon  legislative  action 
proved  so  prejudical  to  the  best  interests  of  the  college  that  this 
plan  had  to  be  materially  modified. 

Before  proceeding  to  a  consideration  of  the  legal  status  of 
our  colleges  in  so  far  as  it  has  been  made  a  subject  of  judicial 

(i.)  See  Missouri  Revised  Statutes,  Chap.  156. 

34 


decisions,  it  remains  to  give  some  account  of  an  institution  to 
which  I  have  already  referred,  and  which  is  quite  peculiar  to 
this  State — I  mean  the  ' '  Regents  of  the  University  of  the  State 
of  New  York. "  This  institution  is  supposed  to  exercise  a  con- 
trol over  all  the  incorporated  institutions  of  secondary  and 
superior  instruction  in  this  State,  and  although  its  efficiency  is, 
in  my  opinion,  perhaps  somewhat  overrated,  still,  as  it  has  been 
a  subject  of  frequent  encomium  in  the  past,  and  may  be  an 
object  of  imitation  in  the  future,  a  review  of  its  organization 
and  powers  will  not  be  out  of  place  as  bearing  on  the  subject 
of  this  treatise. 

The  University  of  the  State  of  New  York  is  an  organization 
including  all  the  incorporated  colleges  of  the  State,  together 
with  the  incorporated  academies  and  the  academical  depart- 
ments of  public  schools.  The  governing  body  is  a  Board  of 
Regents,  composed  in  part  of  State  officers,  who  are  members 
ex  officio,  and  of  others  who  are  elected  by  the  legislature. 
Their  functions  are  those  of  supervision  and  inspection  only, 
and  not  of  instruction.  The  original  theory  was  that  of  an 
English  university,  composed  of  separate  and  independent 
colleges,  established  not  necessarily  in  the  same  locality,  but 
distributed  through  the  State,  as  circumstances  might  call  for 
them  ;  and  the  most  ardent  admirers  of  the  institution  still 
proudly  compare  it  with  the  University  of  Oxford,  though  to 
one  less  interested  the  points  of  resemblance  seem  very  few. 
The  original  act  creating  the  University  was  passed  by  the 
legislature  May  i,  1784,  at  its  very  first  session  after  the  close 
of  the  Revolutionary  War,  in  response  to  a  strong  appeal 
from  Governor  Clinton.  The  plan  of  the  institution  established 
by  this  act  proving  incapable  of  satisfactory  realization,  it  was 
made  a  subject  of  frequent  amendment,  until  at  present  its 
organization  and  functions  are  substantially  as  follows.  Omit- 
ting any  consideration  of  its  duties  in  connection  with  the 
State  Library,  the  State  Musenm,  the  Normal  School  at  Albany, 
the  determination  of  the  State  boundaries,  and  the  publication 
of  its  reports  and  manuals,  which  do  not  immediately  concern 
us ;  we  may  briefly  review  its  organization  and  its  powers  of 
incorporation,  visitation  and  granting  degrees.  The  board 
consists  of  twenty-three  members,  of  whom  four  are  Regents 
ex  officio,  viz :  the  Governor,  the  Lieutenant-Governor,  the 


35 


Secretary  of  State,  and  the  Superintendent  of  Public  Instruc- 
tion, while  the  remaining  nineteen  are  chosen  by  the  legisla- 
ture in  the  same  manner  as  United  States  Senators,  and  hold 
their  office  during  the  legislature's  pleasure.  A  regent  must  be 
a  citizen  of  the  State,  and  cannot  be  a  trustee  or  any  other 
officer  of  a  college  or  academy  under  the  visitation  of  the 
Board.  The  officers  of  the  Board  are  a  Chancellor,  a  Vice- 
Chancellor,  a  Secretary  and  Treasurer,  and  an  Assistant  Secre- 
tary, who  are  chosen  by  ballot  by  the  regents.  Nearly  all  the 
business  of  the  Board  is  conducted  by  means  of  standing  com- 
mittees, of  which  there  are  in  all  ten. 

The  first  important  power  of  the  Board  of  Regents  is  that 
of  incorporating  colleges  and  academies,  which  was  given  it 
by  the  act  by  which  it  was  established.     This  power  did  not 
originally  include  that  of  incorporating  medical  colleges,  which 
was,  however,  subsequently  conferred  (Laws  of  1853,  ch.  184, 
§  7)  upon  condition  that  the  college  applying  should  first  secure 
property  to  the  extent  of  $50,000  before  a  permanent  charter 
could  be  granted.     Later  on  the  Board  established,  by  general 
ordinance,  similar  provisions  for  the  incorporation  of  literary 
colleges  and  academies,  requiring  that  the  former  should  secure 
$100,000  and  the  later  $5,500  before  receiving  a  charter.     As 
incident  to   the    power    of  incorporation,    the   Board   is   also 
authorized  to  annul  and  amend  charters  on  due  cause  being 
shown.     The  second  power  ot  the  regents  is  that  of  visitation. 
The  Board  is  authorized  to  visit  and  inspect  by  its  officers, 
committees  and  accredited  agents  all  the  colleges  and  acade- 
mies which  are  or  may  be  established  in  the  State,  and  to  "  ex- 
amine into  the  state  and  system  of  education  therein."     This 
authority  of  visitation  extends,  not  merely  to  the  institutions 
chartered  by  the  board  itself,  but  also  to  those  receiving  their 
charters  from  the  legislature.     Each  such  college  and  a.cademy 
is  required  by  law  to  make  to  the  Board  an  annual  report  of  its 
affairs,  according  to  such  instructions  and  forms  as  the  Board 
may  furnish  ;  though  it  may  be  observed  that  to  the  breach  of 
this  law  no  special  importance  seems  to  be  attached.     This 
report  pertains  generally  to  its  financial  condition,  its  means  of 
imparting  instruction,  its  departments  of  study,  and  its  statistics 
of  attendance,  and  it  is  from   the  results   of  the  information 


gathered  by  the  visitation,  and  from  the  returns  made  to  the 
board,  that  the  latter's  annual  report  is  compiled. 

In  the  third  place,  and  finally,  the  Regents  have  the  power 
of  granting,  and  of  delegating  to  the  colleges  chartered  by  them 
the  power  of  granting,  literary  and  other  degrees.     The  exact 
significance  of  learned  degrees  in  this  country  would  constitute, 
perhaps  merely  because  of  its  vagueness,  an  interesting  subject 
of  special  study.     That  such  a  degree  is  supposed  to  be  a  badge 
of  honor  conferred  upon  the  recipient  by  the  people  at  large, 
indirectly  through  the  legislature,  which  may  perhaps  for  this 
purpose  be  looked  upon  as  its  agents,  may  reasonably  be  in- 
ferred from  the  fact  that  the  power  to  grant  such  degrees  is 
always  made  a  subject  of  special  mention  in  the  charters  under 
which  college  corporations  act.     But  what  legal  steps  could  be 
taken  to  prevent  an  unauthorized  person  from  assuming,  or  an 
unauthorized  body  of  men  from  conferring  such  academic  titles, 
does  not  (in  the  absence  of  special  statutes),  seem  clear.     It 
would  presumably  be  possible  to  restrain  a  corporation  (not  edu- 
cational in  character),  from  giving  degrees,  on  the  ground  that  it 
was  acting  ultra  vices  in  doing  something  not  incidental  to  the 
discharge  of  its  ordinary  business.     But,  as  certainly  seems  at 
first  blush  and  as  has  been  decided,  in  fact,  by  the  courts,  (The 
State  of  Missouri,  ex  rel.  Granville  vs.  Gregory,  83  mo.  123), 
since  the  conferring  of  degrees  or  certificates  of  proficiency  is  a 
natural  incident  of  educational  institutions,  why  such  institu- 
tions, even  after  incorporation,  should  not  have  the  power  of  so 
bestowing  them  without  an  express  grant  of  this  power  by  the 
legislature  or  (as  in  this  State)  its  agents,  does  not  seem  at  all 
evident.     There  are,  as  far  as  I  have  been  able  to  determine,  no 
express  statutes  (either  in  this  State  or  any  other)  against  the 
unwarranted  assumption  of  degrees,  except  in  the  case  of  M. 
D.,  which  is  generally  recognized  as  carrying  with  it  certain 
privileges,  the  usurpation  of  which  would  be  a  fraud  upon  the 
public,  (i)     But  as  the  possession  of  other  academic  titles  as  a 
rule  confers,  in  spite  of  their  somewhat  imposing  "  cum  omnibus 

(i.)  Thus  it  is  provided  in  New  York  by  Laws  of  1887,  chap.  647,  §  6,  that  "any  per- 
son who  shall  assume  the  title  of  doctor  of  medicine  or  append  the  letters  '  M.  D.'  to  his  or 
her  name  without  having  received  the  degree  of  doctor  of  medicine  from  some  school, 
college,  or  board  empowered  by  law  to  confer  said  degree  or  title,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  punished  by  a  fine  of  not  less  than 
two-hundred  and  fifty  dollars,  or  imprisonment  for  six  months  for  the  first  offence,  and 
upon  conviction  of  a  subsequent  offense  by  a  fine  of  not  less  than  five  hundred  dollars  or 
imprisonment  for  not  less  than  one  year,  or  by  both  fine  and  imprisonment." 

37 


priviligiis  ad  istum  gradum  pertinenntibus,"  no  privilege  save  the 
very  inoffensive  one  of  appending  a  few  (frequently  meaningless) 
capital  letters  as  a  sort  of  an  erudite  tail-piece  to  an  otherwise 
undistinguished  name,  from  an  exercise  of  which  privilege,  no 
matter  how  unwarranted,  a  common-sense  public  would  not 
probably  consider  itself  to  be  specially  wronged,  the  possession 
of  this  "right"  of  conferring  degrees  seems  a  rather  ill-defined 
feature  of  a  department  of  government.  However,  abandoning 
a  speculation  which,  though  entertaining  and  (I  believe)  hitherto 
untouched,  is  perhaps  somewhat  foreign  to  our  present  purpose, 
it  is  sufficient  to  state  that  this  power  is  possessed  by  the  Board 
of  Regents,  and  that  they  are  authorized  by  the  people  of  the 
State  of  New  York,  represented  in  Senate  and  Assembly,  "to 
give  and  grant  to  any  of  the  students  of  the  University,  or  to 
any  persons  thought  worthy  thereof,  all  such  degrees  as  well  in 
divinity,  philosophy,  civil  and  municipal  laws,  as  in  every  other 
art,  science,  and  faculty  whatsoever,  as  are  or  may  be  conferred 
by  all  or  any  of  the  Universities  in  Europe." 

Such  is  in  substance  the  New  York  Board  of  Regents, 
remarkable  because  embodying  the  only  systematic  attempt  on 
the  part  of  a  State  Government  to  exercise  a  general  supervision 
over  collegiate  corporations  of  a  private  character.  It  is  true 
that  there  are  in  other  States  educational  boards  called  Boards 
of  Regents,  but  on  inquiries  I  am  informed  that  their  functions 
and  powers  are  not  similar  in  nature  or  extent  to  those  of  the 
New  York  Board,  and  that  in  this  feature  of  its  educational  sys- 
tem the  Empire  State  stands  quite  alone. 

So  much  for  the  general  character  of  the  American  College  : 
it  now  remains  to  see  to  what  extent  this  character  has  been 
impressed  upon  it  by  the  action  of  the  courts,  and  what  on  the 
whole,  has  been  their  attitude  in  cases  where  their  interference 
seemed  justifiable.  As  before  intimated,  their  jurisdiction  over 
matters  of  internal  collegiate  management  and  discipline  has 
always  been  very  limited,  and  the  judicial  decisions  upon  this 
subject  are  few  in  number. 

By  far  the  most  numerous  class  of  cases  in  the  law  reports 
on  topics  connected  with  colleges  and  the  like,  are  those  which 
refer  to  the  power  of  the  trustees  as  incorporated  bodies  to  deal 
with  the  funds  entrusted  to  them  by  individuals  or  by  the  State, 
or  to  questions  which  (like  that,  for  instance,  of  their  right  to 

33 


sue  and  be  sued  by  a  corporate  name,  &c.)  are  applicable  to 
them  only  in  so  far  as  they  are  applicable  to  all  other  bodies,  as 
corporations,  irrespective  of  their  eleemosynary  character ;  such 
questions  have  of  course  no  interest  for  us  in  this  connection. 
Next  in  number  and  undoubtedly  first  in  importance  come  the 
cases,  headed  by  the  famous  Dartmouth  College  vs.  Woodward, 
4  Wheaton,  518,  on  the  question  of  the  public  or  private  charac- 
ter of  college  corporations,  which  was  in  that  case  very  thorough- 
ly discussed,  but  which  has,  nevertheless,  been  made  a  subject 
of  almost  continual  litigation  ever  since.  It  cannot,  of  course, 
well  be  denied  that  a  college  established  for  the  promotion  of 
education  and  for  instruction  in  the  liberal  arts  and  sciences,  is 
in  some  sense  a  public  institution  or  corporation ;  for  it  is 
for  the  benefit  of  the  public  at  large,  or  at  any  rate  for  all  per- 
sons who  are  suitable  objects  of  the  bounty,  and  this  is  the 
popular  sense  in  which  the  language  is  commonly  used.  And 
so  in  this  sense  any  institution  founded  exclusively  by  private 
donors  for  purposes  of  general  charity,  such  as  a  hospital  for 
the  poor,  the  sick,  the  disabled,  or  the  insane,  may  well  be 
called  a  public  institution.  But  in  the  sense  of  the  law,  a  far 
more  limited,  as  well  as  more  exact,  meaning  is  intended  by  a 
"public  institution  or  corporation.  "Public  corporations "  (says 
Chief  Justice  Marshall,  in  the  great  Dartmouth  College  case) 
are  "generally  esteemed  such  as  exist  for  public  political  pur- 
poses only,  such  as  towns,  cities,  parishes  and  counties ;  and 
in  many  respects  they  are  so,  although  they  involve  some  pri- 
vate interests.  But,  strictly  speaking,  public  corporations  are 
such  only  as  are  founded  by  the  government  for  public  purposes, 
when  the  whole  interests  belong  also  to  the  government  If, 
therefore,  the  foundation  be  private,  though  under  a  charter  of 
the  government,  the  corporation  is  private,  however  extensive 
the  uses  may  be  to  which  it  is  devoted,  either  by  the  bounty  of 
the  founder  or  by  the  nature  and  objects  of  the  institution.  For 
instance  a  bank  created  by  the  government  for  its  own  use, 
whose  stock  is  exclusively  owned  by  the  government,  is,  in  the 
strictest  sense,  a  public  corporation.  So  is  a  hospital  created 
and  endowed  by  the  government  for  general  charity.  But  a 
bank  whose  stock  is  owned  by  private  persons  is  a  private  cor- 
poration, although  it  is  erected  by  the  government  and  its 
objects  and  operations  partake  of  a  public  nature.  .  .  . 


39 


This  reasoning  applies  with  all  its  full  force  to  eleemosynary 
corporations.  A  hospital  founded  by  a  private  benefactor  is  a 
private  corporation  in  point  of  law,  although  dedicated  by  its 
charter  to  general  charity.  So  is  a  college,  founded  and  en- 
dowed in  the  same  manner,  although,  being  for  the  promotion 
of  learning  and  piety,  it  may  extend  its  charity  to  scholars  from 
every  class  of  the  community,  and  this  acquires  the  charter  of 
a  public  institution.  The  fact  that  the  charity  is  public  affords 
no  proof  that  the  corporation  is  also  public." 

It  is  thus  seen  that  a  college,  merely  because  it  receives  a 
charter  from  the  government  and  is  founded  for  a  public  pur- 
pose, is  not  thereby  constituted  a  public  corporation.  The  full 
significance  of  this  fact  is  appreciated  when  we  consider  that 
if  a  corporation  is  public  in  character,  it  is  subject  to  govern- 
ment control,  but  if  private,  it  is  not  In  the  Dartmeuth  case 
the  New  Hampshire  Legislature  attempted  to  make  important 
changes  in  the  college  charter  and  the  privileges  bestowed 
thereunder,  but  was  restrained  from  doing  so  on  the  ground 
that  the  college  was  a  private  corporation,  whose  charter  there- 
fore was  of  the  nature  of  a  contract,  to  impair  the  obligation 
of  which  would  be  unconstitutional.  The  same  ruling  was 
made  in  Allen  vs.  McKean,  i  Sumner,  271,  where  there  court 
(per  Judge  Story,)  further  said  :  "  Nor  does  it  make  any  differ- 
ence that  the  funds  have  been  generally  derived  from  the 
bounty  of  the  government  itself.  The  government  may  as 
well  bestow  its  bounty  upon  a  private  corporation  for  charity, 
as  upon  a  public  corporation  ;  and  its  funds,  once  bestowed 
upon  the  former,  become  irrecoverable  precisely  in  the  same 
manner,  and  to  the  same  extent,  as  if  they  had  been  bestowed 
upon  a  private  individual.  The  government  cannot  resume  a 
gift  once  absolutely  made  to  a  private  person,  neither  can  it 
resume  a  gift  to  a  private  corporation.  It  is  true  that  a  govern- 
ment may  reserve  such  a  power  in  granting  a  charter,  if  it 
chooses  to  do  so,  but  then  the  power  arises  from  the  very 
terms  of  the  grant, (i)  and  not  from  any  implied  authority 
derived  from  the  bounty  being  for  general  charity,  any  more 
than  it  would  from  its  being  for  private  charity.  Nor  is  the 

(i.)  Thus  in  the  Pennsylvania  College  cases,  (13  Wall.  190.)  the  Legislature  had 
reserved  in  the  charters  of  Jenerson  College  and  Washington  College,  the  right  to  change 
the  college  constitutions  ;  so  that  the  courts  held  that  an  act  consolidating  those  two  colleges 
into  one,  was  not  unconstitutional. 


40 


internal  management  of  an  eleemosynary  corporation,  though 
founded  or  endorsed  by  the  government,  necessarily  subject 
to  such  control  as  would  be  implied  by  a  power  of  visitation 
by  the  government  The  same  authority,  (Judge  Story  in 
Allen  vs.  McKean,)  goes  on  to  say  .  "To  be  sure,  when  the 
government  is  the  founder  of  a  college,  it  has  certain  rights  and 
privileges  attached  to  it  in  point  of  law,  but  in  this  respect  it  is 
not  distinguishable  from  any  private  founder.  Every  founder 
of  our  eleemosynary  corporation,  (that  is  thefundafor  perficiens, 
or  person  who  originally  gives  to  it  its  funds  and  revenues,) 
and  his  heirs  have  a  right  to  visit,  inquire  into,  and  correct  all 
irregularities  and  abuses  which  may  arise  in  the  course  of  the 
administration  of  its  funds,  unless  he  has  conferred,  (which  he 
has  the  right  to  do),  the  power  upon  some  other  person.  This 
power  is  commonly  known  by  the  name  of  the  visitatorial 
power,  and  it  is  a  necessary  incident  to  all  eleemosynary  cor- 
porations ;  for  these  corporations  being  composed  of  individ- 
uals subject  to  human  frailties  are  liable,  as  well  as  private 
persons,  to  deviate  from  the  end  of  their  institution,  and  there- 
fore ought  to  be  subject  to  some  supervision  and  control  .  .  . 
But  a  founder  may  part  with  his  visitatorial  power  and  vest  it 
in  other  persons  ;  and  when  he  does  so,  they  exclusively  suc- 
ceed to  his  authority."  This  is  commonly  the  case  with 
college  corporations  ;  the  founder,  whether  he  be  a  private 
person  or  the  state,  vests  the  power  of  visitation  in  a  board  of 
visitors,  and  then  he  has  no  further  right  to  interfere  with  its 
management  than  if  he  were  a  mere  stranger.  "The  visitor 
(says  Judge  Bliss  in  the  case  of  St.  Charles  College,  State  ex  rel. 
Pittman  vs.  Adams,  44  Mo.,  578,)  is  the  judge  and  arbiter  to 
decide  all  disputed  questions  not  involving  the  integrity  of  the 
management  of  the  fund  or  the  observance  of  the  statutes  of  the 
founder  and  he  alone  can  make  by-laws  that  shall  bind  the 
officers."  It  being  thus  settled  that  if  a  college  corporation  is 
private  in  character  it  is  beyond  the  reach  of  state  control,  the 
question  arises  as  to  how  we  may  determine  under  what  cir- 
cumstances it  is  private  ;  what  is  the  distinction  between  edu- 
cational institutions  of  a  private  and  those  of  a  public  nature  ? 
The  answer  to  this  question,  as  apparently  determined  by  the 
Dartmouth  College  case,  and  the  numerous  subsequent  cases 
upon  the  same  point  reciting  upon  it  as  an  authority,  is,  in 


general,  that  if  the  property  possessed  by 'the  corporation  is 
altogether  the  property  of  the  state,  if  the  corporators  have 
done  nothing  amounting  to  a  valuable  consideration  for  the 
act  of  incorporation,  in  short,  if  there  is  no  contract  between 
the  state  and  the  corporators,  it  is  a  public,  and  not  a  private 
corporation.  Further,  if  the  act  of  incorporation  be  a  grant  of 
political  power,  if  it  create  a  civil  institution  to  be  employed 
in  the  administration  of  the  government,  so  that  the  state  alone 
may  be  said  to  be  interested  in  its  transactions,  then  it  is  a 
public  corporation,  and  as  such  of  course  amenable  to  the 
pleasure  of  the  legislature. 

Litigations  involving  this  distinction  have  been  of  com- 
paratively frequent  occurrence  in  the  Western  States,  where  the 
universities  have  usually  either  received  important  aid  from,  or 
have  been  immediately  connected  with,  the  government,  and 
the  question  has  thus  been  more  frequently  made  a  subject  of 
judicial  consideration  there  than  it  has  in  the  Eastern  States,  where 
the  colleges  have  been  supported  chiefly  by  private  endow- 
ment, independent  of  government  action.  Thus  the  University 
of  Alabama  has  been  held  (Trustees  of  the  University  of  Ala- 
bama vs.  Winston,  5  Stew,  and  P..  25)  to  be  a  public  corpora- 
tion, on  the  ground  that  its  funds  were  derived  from  public 
property,  and  that  the  character  of  an  institution  is  not  deter- 
mined from  its  incorporation,  but  from  the  manner  in  which, 
and  the  object  for  which,  it  was  formed.  For  similar  reasons 
the  University  of  Missouri  was  likewise  considered  to  be  a 
public  corporation.  (Head  vs.  Curators  of  the  University  of 
Missouri,  47  Mo.,  220.)  It  was  established  by  an  act  of  the 
legislature,  and  as  there  were  no  grantees  named  in  the  grant, 
there  were  none  to  accept  or  reject  the  grant,  and  the  creation 
of  the  institution  was  in  no  sense  a  contract.  Hence,  though 
the  funds  for  its  maintenance  were  derived  largely  from  private 
gifts  (in  fact  partly  from  Columbia  College),  the  university  was 
still  a  public  corporation,  and  an  appointment  to  a  professor- 
ship was  an  appointment  to  a  civil  office.  A  similar  case  was 
similiarly  decided  in  the  courts  of  North  Carolina  (University 
of  North  Carolina  vs.  Maultsby,  8  Iredell,  257),  where  it  was 
held  that  the  donations  of  private  individuals  did  not  in  any 
wise  change  the  public  nature  of  the  university.  So,  too,  the 
University  of  Nebraska  (Regents  vs.  McConnell,  5  Neb.,  423) 


was  held  to  be  a  public  corporation,  and  the  court  said  that 
"such  public  corporations  are  but  part  of  the  State  machinery 
employed  in  carrying  on  the  affairs  of  the  State,  and  they  are 
subject  to  be  changed,  modified  or  destroyed,  as  the  exigencies 
of  the  public  may  demand."  The  same  results  were  arrived  at 
in  the  cases  of  the  Medical  College  of  Virginia,  (Lewis  vs. 
Whittle,  77  Va.,  415,)  and  Straight  University  in  Louisiana 
(State  of  Louisiana  ex  rel.  Board  of  Trustees  of  Straight  Univer- 
sity vs.  Graham).  In  one  case  (Weary  vs.  The  State  University, 
42  Iowa,  335)  the  court  went  so  far  as  the  hold  that  the  univer- 
sity (that  of  Iowa)  was  not  even  a  corporation  at  all,  either 
private  or  public,  but  merely  a  creation  of  the  legislature  and 
a  branch  of  the  government  like  other  public  eleemosynary 
institutions,  such  as  State  asylums  for  the  insane,  blind,  deaf 
and  dumb,  &c. 

Having  considered  in  general  to  what  extent  colleges  are 
amenable  to  State  control  according  as  they  are  in  nature  public 
or  private,  and  having  seen  that,  if  they  are  private  corporations 
they  cannot  be  judicially  interfered  with,  unless,  being  incor- 
porated, they  act  distinctly  ultra  vires,  we  may  now  determine 
what  acts  have  been  considered  by  the  courts  to  be  beyond  the 
range  of  the  powers  bestowed  by  a  college  charter  and  what 
have  not.  It  may  be  premised  that  the  courts  are,  as  a  rule, 
reluctant  in  deciding  that  a  corporation  has  acted  ultra  vires,  if 
the  result  of  such  decision  would  be  to  bring  about  a  total  for- 
feiture of  its  charter,  but  that  they  are  less  liberal  if  the  object 
of  the  suit  in  which  their  intervention  has  been  invoked,  is 
merely  to  restrain  the  corporation  by  injunction  from  commit- 
ting, or  continuing  to  comit,  action  prejudicial  to  others'  private 
rights.  This  tendency  is  strongly  marked  in  cases  where  the 
corporations  are  of  eleemosynary  character,  for  these  being  for 
the  benefit  of  the  public  at  large,  an  interpretation  of  the  terms 
of  their  charters  such  that  unimportant  violations  of  them  would 
cause  them  to  be  altogether  forfeited  and  put  an  end  to  the 
existence  of  the  institutions,  would  work  great  public  wrong. 

In  The  State  of  Ohio  ex  Rel.  vs.  Farmers'  College,  (32  Ohio 
State,  487),  the  learned  judge  said,  "The  courts  proceed  with 
extreme  caution  in  proceedings  which  have  for  their  aim  the 
forfeiture  of  corporate  franchises,  and  such  forfeitures  are  not  to 
be  allowed  unless  under  express  limitation  of  the  charter  or  for 


43 


a  plain  abuse  of  power  by  which  the  corporation  fails  to  fulfill 
the  design  and  purposes  of  its  organization,"  and  the  circum- 
stances of  this  case  afford  an  excellent  example  of  the  applica- 
tion of  the  doctrine.  The  avowed  object  of  the  Farmers' College, 
as  declared  by  its  acts  of  incorporation  was  "to  direct  and  cul- 
tivate the  minds  of  the  students  in  a  thorough  and  scientific 
course  of  studies  particularly  adopted  to  agricultural  pursuits." 
The  college  authorities  did  then  in  fact  establish  a  chair  of 
agriculture  and  filled  it  with  a  competent  professor,  but 
scientific  farming  did  not  prove  popular,  and  no  one  attended 
the  agricultural  course.  The  trustees  further  offered  a  full 
classical  college  course,  and  this  attracted  a  fairly  large 
number  of  students.  An  attempt  was  made  to  restrain  the 
college  from  spending  its  funds  on  studies  apparently  so 
much  at  variance  with  the  objects  of  its  foundation,  but 
the  court  held  that  classical  studies  were  necessary  to 
enable  a  farmer  to  understand  fully  the  meaning  of  agricul- 
tural terms,  and  the  charter  was  not  forfeited.  S  ill  more  ex- 
tensive powers  were  considered  to  be  vested  in  the  trustees,  by 
the  court  in  The  People  -vs.  The  President  and  Trustees  of  the 
College  of  California,  38  Cal.,  166.  In  this  case  the  college 
charter  provided,  among  other  things,  that  the  trustees  should 
have  power  "to  sell,  mortgage,  lease,  and  otherwise  use  and 
dispose  of  such  property,  (the  college  property),  in  such  man- 
ner as  they  shall  deem  most  conducive  to  the  prosperity  of  the 
college."  The  trustees  actually  did  deem  it  expedient  to  put  an 
end  to  the  individual  existence  of  the  college  altogether,  by 
granting  all  its  funds  to  another  similar  institution,  and  the 
court  held  that  as  long  as  they  could  be  presumed  to  be  acting 
bonafide  with  the  intention  of  advancing  the  interests  of  higher 
education  and  thereby  fulfilling  the  object  for  which  the  college 
was  founded,  they  were  not  acting  beyond  the  scope  of  their 
authority  in  terminating  the  college's  very  existence.  Nor 
could  the  circumstance  that  a  number  of  voluntary  donations 
had  been  made  to  the  institution  be  considered  as  of  any  weight  in 
restraining  them  from  properly  disposing  of  the  college  property 
and  surrendering  its  franchise  ;  for,  it  was  held,  persons  making 
such  donations  must  be  presumed  to  have  known  the  law  con- 
cerning the  extent  of  the  trustees'  powers.  A  somewhat  similar 
case  is  found  in  the  New  York  Reports,  (The  People  vs.  the 


44 


Trustees  of  Geneva  College,  5  Wend.,  211  ;  reversed  in  26  N.  Y., 
217),  though  in  this  o  ily  a  part  of  the  college  funds  was  to  be 
devoted  to  the  establishment  of  another  institution.  The  Supreme 
Court  held  that  Geneva  College  in  Ontario  Co.  had  not  power 
to  expend  the  college  money  in  establishing  a  branch  school  in 
the  city  of  New  York  to  be  called  the  Rutgers  Medical  Faculty 
of  Geneva  College,  and  that  the  establishment  of  the  same  and 
the  appointing  of  professors  to  take  charge  thereof  was  an  usur- 
pation of  a  franchise  for  which  an  information  in  the  nature  of  a 
quo  waraanto  might  be  filed.  But  this  ruling  was  not  sustained 
by  the  Court  of  Appeals,  which  declared  that  "the  powers  pos- 
sessed by  a  college  corporation  should  be  liberally  construed, 
and  their  exercise  allowed  with  wide  discretion  within  the  field 
of  its  objects.  Thus  if  the  charter  contains  a  provision  that  the 
object  of  the  corporation  is  'to  promote  education  in  general 
and  to  cultivate  and  advance  literature,  science,  and  the  fine 
arts'  it  may  even  use  its  funds  to  pay  the  expenses  of  educating 
young  men  in  other  institutions.  For  it  may  pursue  its  object 
by  any  means  not  forbidden,  and  it  may  employ  other  teachers 
and  other  seminaries  as  preparatory  to  its  own  course  or  even 
as  modes  of  dispensing  the  instruction  it  proposes  to  give.'' 
Thus  in  a  Massachusetts  case,  (6  Pick.,  427),  an  academy  incor- 
porated "to  promote  morality,  piety,  and  religion  and  for  the  in- 
struction of  youth  in  the  learned  languages  and  in  arts  and 
sciences"  was  held  capable  of  taking  the  promissory  notes  of 
individuals  to  constitute  a  fund  to  form  another  institution  "for 
the  classical  or  academical  and  collegiate  education  of  young 
men  with  a  view  to  the  Christian  ministry."  On  the  other  hand, 
the  charter  will  sometimes  be  construed  strictly,  especially 
when,  as  I  have  before  remarked,  the  results  of  such  construc- 
tion will  not  be  a  forfeiture  of  the  franchise,  but  will  merely 
result  in  an  injunction  restraining  the  college  from  the  commis- 
sion of  a  particular  act.  Thus  in  a  case  in  this  State,  a  college 
charter  contained  in  its  provisions  a  clause  to  the  effect  that  if 
the  trustees  ahould  desire  to  remove  the  college  to  some  other 
location,  they  should  be  at  liberty  to  do  so  upon  notifying  the 
Secretary  of  State  of  such  intention  ;  and  the  court  construed 
this  so  strictly  as  to  hold  that  the  condition  was  not  complied 
with  within  the  meaning  of  the  act  of  incorporation  by  a  noti- 
fication that  the  college  was  to  be  removed  "to  Rochester  or  its 


45 


vicinity."  (Hascall  vs.  Madison  University,  8  Barb.,  174.) 
Another  New  York  case  in  which  the  courts  interfered  to  re- 
strain a  college  from  an  exercise  of  power  not  warranted  by  its 
charter  is  interesting  as  illustrative  of  the  rare  attempts  on  the 
part  of  colleges  to  claim  exceptional  rights  on  the  mere  ground 
that  they  are  colleges  or  universities  and  hence  should  have  the 
same  prerogatives  as  are  possessed  by  bodies  of  similar  name 
in  England.  I  refer  to  the  case  of  The  Medical  Institution  of 
Geneva  College  vs.  Pattison,  i  Denio,  61  ;  in  which  Geneva 
College  claimed  the  right  of  establishing  and  incorporating  a 
medical  school.  The  argument  of  the  counsel  for  the  plaintiff, 
which  was  both  learned  and  ingenious  was,  briefly,  that  as  the 
English  universities  (and  especially  Oxford)  have  the  power  of 
incorporating  colleges,  (which  power  was  conferred  by  Parlia- 
ment or  by  the  Crown  in  their  charters),  and  as  Columbia  Col- 
lege was  endowed  by  the  legislature  (through  the  Board  of 
Regents)  with  all  the  rights  of  the  English  universities,  and  as 
Geneva  College  (like  all  New  York  colleges)  was  endowed  by 
the  same  authority  with  all  the  rights  of  Columbia  College, 
therefore  Geneva  College  was  possessed  of  the  right  of  incor- 
porating other  similar  institutions.  The  court,  however,  failed 
to  admit  this  reasoning,  and  held  that  as  the  organization  of 
Columbia  College  was  not  on  the  whole  at  all  similar  to  that 
of  Oxford,  (there  being,  for  instance,  no  chancellor),  neither  it 
nor  any  other  New  York  college  had  any  power  of  incorporation. 
Disputes  have  arisen  concerning  the  extent  to  which  a 
college  may  adopt  a  policy  or  pass  by-laws  inconsistent  with  the 
apparent  intention  of  those  who  have  contributed  to  the  college 
funds  upon  the  acceptance  by  the  college  of  certain  conditions. 
And  in  these  cases  it  is  held  that  a  college  is  bound  strictly  to- 
me performance  of  the  conditions  annexed  to  grants  of  money 
to  it,  and  that  conversely  the  acceptance  of  the  conditions  con- 
stitutes a  valuable  consideration,  in  virtue  of  which  it  may 
enforce  the  fulfillment  of  a  promise  of  contributions.  Thus  in 
Hammond  vs.  Shepard,  (40  How.  Pr. ,  452,)  it  was  held  that  an 
agreement  on  the  part  of  the  trustees  "to  hold  their  doors  open 
on  all  moral  questions,"  was  a  sufficient  consideration  to 
enforce  the  payment  of  a  promissory  note.  And  on  the  other 
hand,  it  has  been  decided  (The  Illinois  Conference  Female 
College  vs.  Cooper,  25  111.,  148)  that  a  college  has  no  right 

46 


to  adopt  by-laws  injuriously  affecting  the  rights  of  others  under 
prior  contracts  by  annexing  conditions  not  named  in  the  con- 
tracts. So  after  the  sale  of  a  perpetual  scholarship  in  an  incor- 
porated college,  a  by-law  annexing  a  condition  that  the  pupil 
presented  under  it  shall  board  in  the  college  and  be  subject  to 
the  collegiate  charges  therefor,  is  unauthorized  and  void.  The 
same  ruling  was  made  in  The  Trustees  of  Howard  College  vs. 
Turner,  (71  Alabama,  429,)  to  the  effect  that  a  certificate  of 
permanent  scholarship  issued  by  the  trustees,  by  which  the 
holder,  in  consideration  of  money  paid,  becomes  entitled  to  one 
pupil's  tuition  in  perpetuo  is  a  valid  and  binding  contract,  con- 
ferring upon  the  holder  the  right  to  send  any  fit  person  within 
his  option  to  the  college  as  a  pupil  to  be  educated  subject  to 
the  usual  regulations  of  the  institution,  free  of  tuition  ;  and  im- 
posing on  the  corporation  a  corresponding  legal  obligation,  a 
breach  of  which  is  a  ground  of  action.  And  such  a  breach  is 
constituted  by  the  refusal  to  permit  such  holder  to  make  such 
appointment.  In  some  of  the  Western  States  the  law  provides 
that  each  county  shall  have  the  right  to  send  one  or  more 
pupils  to  the  State  university  to  receive  tuition  free  of  charge. 
In  one  instance,  (McDonald  vs.  Hagins,  7  Blackf.,  525,)  the 
University  of  Indiana  attempted  to  refuse  to  admit  such  free 
student  to  the  law  school,  on  the  ground  that  the  latter  was  not 
the  "University."  But  the  court  held  that  all  branches  of  the 
institution,  even  though  the  sessions  and  courses  of  instruction 
were  shorter  than  those  in  most  of  the  departments,  were  to  be 
considered  as  the  "University,"  and  to  come  within  the  rule. 
Nor  can  a  college,  unless  such  provisions  are  included  in  its 
charter  or  by-laws,  reject  an  applicant  for  admission  on  the 
ground  that  she  is  a  female.  Thus  Hastings  College  attempted 
to  do  so,  (Foltzz>s.  Hoge,  54  Cal.,  28,)  but  it  was  held  that  as  the 
only  qualifications  for  admission  expressed  in  the  statutes  were 
that  the  applicant  must  be  a  resident  of  the  State,  over  fourteen 
years  of  age,  and  of  good  moral  character,  they  must  not  be 
construed  to  imply  a  qualification  of  sex,  and  the  trustees  had 
no  right  to  reject  a  woman  merely  because  she  was  a  woman  . 
An  interesting  case  arose  in  Massachusetts  concerning  the 
power  of  the  State  Legislature  to  pass  laws  regulating  the  dis- 
cipline of  collegiate  corporations,  and  concerning  the  constitu- 
tionality of  such  laws  when  they  were  apparently  prejudicial 


47 


to  the  rights  of  third  persons.  In  this  case,  (Soper  vs.  The 
President  and  Trustees  of  Harvard  College,  i  Pick.,  177,)  it 
appeared  that  the  legislature  had  passed  an  act  providing  that 
no  livery  stable  keeper  "shall  give  credit  to  any  undergraduate 
of  either  of  the  colleges  within  this  commonwealth  without  the 
consent  of  such  officer  or  officers  of  the  said  colleges  respec- 
tively, as  may  be  authorized  to  act  in  such  cases  by  the  gov- 
ernment of  the  same,  or  in  violation  of  such  rules  and  regula- 
tions as  shall  be  from  time  to  time  established  by  the  authority 
of  said  colleges  respectively,"  and  giving  an  action  on  the  case 
against  any  person  so  giving  credit,  to  recover  a  sum  equal  to 
the  amount  credited.  The  plaintiff,  a  livery-stable  keeper, 
claimed  that  the  act  was  unconstitutional,  but  his  claim  was 
not  sustained.  The  opinion  states  that  "the  court  entertained 
no  doubt  of  the  constitutionality  of  the  law  on  which  this  action 
is  founded.  The  object  of  it  is  clearly  within  legislative  sanc- 
tion, being  relative  to  the  discipline  of  public  seminaries  of 
learning.  The  common  law  renders  void  any  promise  made 
by  an  infant,  the  consideration  of  which  is  not  for  necessaries  ; 
but  people  will  nevertheless  give  credit  to  them,  and  minister 
to  their  pleasures  and  dissipation,  relying  upon  the  honor  of 
ingenuous  young  men  to  discharge  debts  so  incurred.  Thus 
the  wholesome  intention  of  the  common  law  is  evaded,  and 
youths  are  exposed  to  temptations  which  it  is  difficult  for  them 
to  resist,  and  thus  parents  are  brought  to  expense,  besides 
suffering  the  loss  of  their  hopes  in  the  education  of  the  children. 
A  general  law,  such  as  the  one  in  question,  is  perhaps  the  only 
remedy  for  so  great  an  evil;  and  this  statute  may  be  con- 
sidered as  passed  in  aid  of  the  common  law,  being  founded  on 
similar  principles  ;  for  youth  assembled  at  a  college  for  educa- 
tion are  properly  regarded  as  minors,  whether  of  twenty-one 
years  of  age  or  under.  An  attempt  was  made  to  evade  a  similar 
law  in  Connecticut,  (Morsels.  The  State  of  Connecticut,  6  Conn., 
9,)  by  claiming  that  the  person  to  whom  credit  was  given  was 
not  a  "student  of  the  college"  (Yale),  because  according  to 
the  college  by-laws  no  one  was  to  be  regarded  as  a  regular 
member  until  he  had  been  admitted  to  matriculation  after  six 
months'  residence  ;  but  the  court  held  that  simply  passing  an 
entrance  examination  and  attending  lectures  was  sufficient  to 

48 


constitute  a  person  a  student,  he  being  under  the  government 
of  the  authority  presiding  over  the  institution. 

In  respect  to  the  interesting  question  of  academic  degrees, 
to  which  I  have  already  alluded,  the  only  case  I  have  been 
able  to  find  bearing  directly  on  the  power  of  a  college  corpora- 
tion to  grant  such  degrees  when  not  expressly  authorized  to  do 
so  by  the  State  legislature  in  its  charter,  is  The  State  of  Mis- 
souri ex  rel.  Granville  vs.  Gregory,  83  Mo.,  123.  In  this  case 
the  relator  applied  to  the  State  Board  of  Health  for  a  certificate 
to  practice  medicine,  presenting  a  diploma  from  the  Kansas 
City  Hospital  College  of  Medicine  (of  Missouri),  but  was  refused 
such  certificate  partly  on  the  ground  that  the  said  college  had 
no  authority  to  issue  diplomas  or  grant  degrees.  This  was 
held  not  to  be  a  valid  objection,  and  the  opinion  of  the  court, 
which  was  stated  at  some  length,  was  in  substance  as  follows  •': 
The  medical  college  was  incorporated  under  the  provisions  of 
a  general  law,  by  virtue  of  which,  after  the  performance  of 
certain  conditions,  the  college  incorporation  was  considered  to 
be  effected.  Now,  when  the  legislature  authorized,  by  a 
general  law  to  that  effect,  the  incorporation  of  colleges,  it  must 
be  presumed  to  have  been  conversant  with  the  effect  of  such  a 
general  enactment,  and  to  have  intended  that  the  usual  inci- 
dents and  consequences  should  flow  from  such  incorporations. 
Among  the  incidents  and  consequences  which  have  been  cus- 
tomary with  institutions  of  this  character  are  those  of  conferring 
degrees  upon  those  of  the  students  who,  having  pursued  the 
curriculum,  have  been  graduated,  and  the  issuance  to  them  of 
diplomas  bearing  evidence  of  that  fact.  A  diploma  is  said  to 
be  "a  document  bearing  record  of  a  degree  conferred  by  a 
literary  society  or  educational  institution,"  or,  in  other  words, 
a  statement  in  writing,  bearing  the  seal  of  the  institution, 
setting  forth  that  the  student  therein  named  has  attained  a  cer- 
tain rank,  grade  or  degree  in  the  studies  he  has  pursued.  If  it 
be  said  that  there  is  no  express  power  granted  to  such  an  insti- 
tution by  the  general  law  of  its  organization  to  confer  degrees 
on  its  students,  it  may  be  replied  that  neither  is  express  power 
bestowed  by  that  law  to  prescribe  the  course  of  study  the 
students  shall  pursue.  In  this  country  a  corporation  has 
authority  to  do  any  act  which  is  expressly  or  impliedly  author- 
ized by  its  charter,  and  charters  are  to  be  construed  in  the 


49 


light  of  custom.  These  conditions  induce  the  belief  that  the 
college  of  medicine,  under  power  necessarily  implied  from  its 
being  incorporated  for  a  certain  purpose,  could  lawfully  issue 
and  deliver  to  its  graduates  diplomas  giving  evidence  of  the 
matters  therein  recited. 

In  a  Massachusetts  case,  (Wright  vs.  Lanckton,  19  Pick., 
288,)  contention  arose  as  to  the  time  when  a  resolution  by  a 
board  of  trustees,  to  confer  a  degree,  took  effect.  The  plaintiff, 
it  seems,  sued  the  defendant  to  recover  fees  for  medical 
services,  and  was  met  with  the  reply  that  he  was  not  yet  a 
doctor  of  medicine.  He  offered  to  prove  that  the  trustees  of 
Williams  College  had  "voted  that  the  honorary  degree  of 
doctor  of  medicine  be  conferred  "  upon  him,  and  the  defendant 
tooic  exception  to  this  proof  offered  to  show  the  possession  of 
the  degree.  At  a  regular  meeting  of  the  trustees  (with  whom, 
without  further  sanction,  rests  the  authority  to  confer  all  degrees) 
it  was  voted  that  the  honorary  degree  of  doctor  of  medicine 
be  conferred,  &c.  It  was  objected  that  this  was  prospective 
and  incomplete ;  that  it  was  a  determination  that  a  degree  be 
conferred,  but  did  not  confer  it ;  that  it  was  rather  an  authority 
to  the  president  and  other  competent  officers  to  confer  the  de- 
gree, than  the  definite  act  conferring  it.  But  the  court  over- 
ruled this  exception,  and  declared  the  evidence  to  be  compe- 
tent, for  "when  an  aggregate  body  is  authorized  to  make  an 
appointment  or  grant  an  authority  or  privilege,  and  no  mode 
is  specially  directed  in  which  it  shall  be  done,  or  by  which  it 
shall  be  proved,,  a  vote  that  the  act  be  done,  or  the  right 
granted,  is  an  execution  of  the  power ;  and  a  duly  authenticated 
copy  of  the  vote,  a  sufficient  proof  of  it.  A  public  annuncia- 
tion or  a  diploma  may  be  extremely  suitable  and  appropriate 
modes  of  declaring  and  giving  notoriety  to  the  act,  but  they  are 
not  necessary,"  (citing  Maibury  vs.  Madison,  i  Cranch,  137.) 

Having  illustrated,  as  far  as  possible,  the  cases  in  which 
the  courts  are  considered  competent  to  interfere  with  the  action 
of  corporations,  it  will  not  be  inappropriate  to  state  when  and 
by  whom  such  interference  may  be  invoked.  In  The  People 
ex  rel.  Drake  vs.  The  Regents  of  the  University  of  Michigan,  4 
Mich.,  98,  it  was  held  that  as  a  general  rule  it  is  not  competent 
for  a  private  person  in  a  matter  in  which  he  is  not  directly  in- 
jured to  compel  a  public  board  to  the  performance  of  a  duty ; 


and  that,  therefore,  as  the  financial  and  other  interests  of  the 
University  of  Michigan  were  intrusted  with  wide  discretionary 
powers  to  a  board  of  regents,  it  was  a  sufficient  answer  to  an 
application  for  a  mandamus  to  show  cause  why  they  did  not 
appoint  to  a  professorship  established  by  law,  that  the  appoint- 
ment in  question  requirred  great  deliberation.  This  ruling 
would  probably  apply,  a  fortiori,  to  corporate  colleges  of 
private  nature. 

CHAPTER  VI. 
CONCLUSION. 

From  the  foregoing  statement  two  inferences  may  fairly  be 
drawn,  or  in  other  words,  two  facts  seem  clearly  to  appear. 
In  the  first  place  the  citizens  of  the  United  States,  and  even 
before  the  United  States  existed  as  such  the  English  colonists 
in  America,  have  from  the  first  proclaimed  and  still  hold  to  the 
principal  of  popular  education  as  a  prime  factor  in  national 
excellence  and  a  legitimate  or  even  imperative  object  of  gov- 
ernment expenditure.  That  this  principle  has  everywhere  and 
at  all  times  obtained  the  same  extent  of  recognition,  it  were 
vain  to  assert :  in  fact  the  variance  of  opinion  which,  especially 
at  a  very  early  date  in  our  educational  history,  existed  in 
different  sections  of  this  country  was  noted  above.  But  the 
opposing  views  were  so  early  reconciled  that  the  general  truth 
of  this  statement  concerning  the  universality  of  the  doctrine  of 
free  school  instruction  for  the  people  is  in  no  wise  impaired. 
The  chief  topic  of  dispute  concerning  our  American  educa- 
tional system  has  been,  and  still  is,  not  whether  the  govern- 
ment should  provide  free  instruction  for  the  people  and  enforce 
them  to  avail  themselves  of  its  advantages  by  compulsory 
laws,  but,  granting  that  it  should,  whether  this  is  a  duty  and  a 
power  remaining  in  the  governments  of  the  several  common- 
wealths or  whether  it  is  also  imposed  or  conferred  upon  the 
central  government?  The  frequent  endeavors  to  obtain  the 
passage  of  bills  through  the  National  Congress  providing  for 
the  establishment  of  a  system  of  free  schools  maintained  and 
controlled  by  the  central  government,  and  the  constant  oppo- 
sition to  such  bills  on  the  ground  that  the  government  has  no 
such  power  under  the  Constitution,  have  made  the  arguments 
to  be  presented  for  and  against  such  a  system  familiar  to  all. 


The  second  fact  which  presents  itself  prominently  to  the 
observer  of  our  educational  system,  as  well  as  to  the  student  of 
its  history,  is  the  extreme  freedom  from  control  by  the  central 
government  over  the  internal  management  of  our  public  edu- 
cational system,  and  the  almost  entire  absence  of  any  govern- 
ment control  whatever  in  the  case  of  private,  though  incorpor- 
ated, institutions  of  learning.  The  result  of  this  is  of  course 
an  utter  lack  of  uniformity  in  matters  of  education,  except  in 
the  merely  external  matters  of  organization  and  financial  gov- 
ernment, both  in  the  ideas  aimed  at  and  in  the  methods 
adopted  to  attain  them.  The  control  exercised  by  our  State 
governments  over  the  common  schools  concern  chiefly  their 
financial  relations,  and  any  endeavor  to  prescribe  in  detail  the 
studies  to  be  pursued,  or  rather  the  doctrines  to  be  inculcated 
in  them,  is  looked  upon  very  jealously  as  a  possible  prostitu- 
tion of  the  school  system  to  purposes  of  party  politics.  The 
immediate  injurious  effects  of  the  heterogeneous  nature  of  our 
public  instruction  consequent  upon  so  great  freedom  of  local 
action,  are  many  and  well  known,  and  too  much  stress  cannot 
be  laid  upon  the  ever-growing  necessity  of  a  more  uniform 
system  of  primary  instruction  as  a  means  of  binding  together 
the  opposing  elements  of  our  mingled  population  by  an  in- 
grained sentiment  of  national  unity.  The  absence  of  govern- 
ment or  other  centralized  control,  even  with  the  existence  of 
government  patronage  and  protection,  in  our  higher  institutions 
of  learning,  results  in  a  like  want  of  uniformity  with  like  deplor- 
able results  in  our  colleges  and  universities.  There  are  at 
present  upwards  of  400  colleges  in  this  country,  each  with 
its  own  standard  of  higher  education,  and  each  differing  from 
all  the  rest  in  the  aims  and  methods  of  its  curriculum,  but  all 
presuming  to  be  equal  in  rank  and  dignity,  and  all  possessed 
of  similar  powers  of  conferring  titular  badges  of  academic  dis- 
tinction. The  natural  result  is  a  general  want  of  confidence  in 
college  training  and  a  still  greater  disrespect  for  college  honors 
and  degrees. 

The  proper  and  only  remedy  for  these  evils  is  a  system  of 
university  instruction  such  that  a  diploma  from  any  incor- 
porated college  shall  be  an ,.impeachable  token  of  thorough 
work  done,  and  the  only  way  of  thus  giving  the  stamp  of  pop- 
ular approval  to  a  college  degree  is  to  have  the  college  itself, 
and,  in  preparation  for  it,  the  schools,  under  the  immediate 
and  thorough  control  of  a  powerful  and  enlightened  govern- 
ment. 

52 


DATE  DUE 


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